IMPORTANT POINT
Offence u/s. 138 of Negotiable Instruments Act could not depend upon endorsement made by banker while returning cheque and if it is established, respective of endorsement made by banker that in fact cheque was returned unpaid either because money standing to his credit was insufficient to honour the cheque or if exceeds amount arranged to be paid offence would be established.

M.S. Vaidya, J. - The respondent No. 1 - Bhupendra S/o Ambalal Patel was an employee of the petitioner as his Branch Manager-cum-Chief Accountant for several years prior to the year 1989. In an audit which was concluded on or about 6th of July, 1989, it was discovered that during the period of 3 or 4 years prior to that date, he had misappropriate amounts to the tune of Rs. 10 lakhs approximately. According to the petitioner, the father of the respondent No. 1 also was in the employment of the petitioner for quite some time and when the matter was referred to him and was discussed with respondent No. 1, the respondent No. 1 had agreed to issue cheques in respect of part of the amount that was found due from him. It is averred in the complaint that cheque No. 6203904 dated 15.7.1989 for a sum of Rs. 3 1akhs was the first cheque issued. Simultaneously, three other cheques bearing Nos. 6203905, 6203906 and 6203907 bearing dates 31st August 1989, 30th September 1989 and 31 October 1989 respectively were issued, each for a sum of Rs. 1 Lakh. Thus, a sum of Rs. 6 lakhs was sought to be made good.

2. The first cheque bearing No. 6203904 dated 15th July 1989 for Rs. 3 1akhs was presented to the bank for collection through the banker. But, the same was returned unpaid by the bank with the endorsement that the payment of the cheque was stopped by the drawer. The statutory notice dated 22.7.1989 was issued to the respondent No. 1. The same was served on him on 25.7.1989. The payment was not made within 15 days as prescribed by Section 138 of the Negotiable Instruments Act, and therefore, on 1.9.1989 a complaint was lodged in that respect. Criminal Application No. 1076/1992 has arisen out of that transaction.

3. The second cheque bearing No. 6203905 was presented to the bank and was returned unpaid with the similar remark. Therefore, the statutory notice dated 11.9.1989 who issued. The amount was not paid by the respondent No. 1. Therefore, the complaint came to be filed on 1.9.10.1989. Criminal Application No. 1073/1992 arises out of this transaction. The third cheque bearing No. 6203906 dated 30th September 1989 was presented to the bank and was returned for similar reason. The statutory notice was issued on 17.10.1989. The amount was not paid within the prescribed period of 15 days and, therefore, a separate complaint was lodged on 1.12.1989.

4. Cheque No. 6203907 dated 31.10.1989 was also presented to the bank and was returned unpaid with similar remark. Therefore statutory notice was issued on 7.11.1989 and, as the amount was not paid within 15 days the complaint was lodged on 3.1.1990.

5. All these complaints were lodged before the 5th Judicial Magistrate (First Class), Aurangabad and after the necessary formalities, the learned Magistrate had ordered the process to be issued in all the four cases.

6. The respondent No. 1-Bhupendra, then, preferred Revision Petitions in the Sessions Court against those four orders passed on four complaints bearing Criminal Revision Application Nos. 194/1990; 195/1990; 196/1990 and 262/1989. The learned 2nd Additional Sessions Judge, Aurangabad, who heard the matters allowed the Revision Petitions holding that as the payments of the cheques were stopped by the respondent No. 1, there was no question of commission of any offence involved and that, as no offence was disclosed in the matter, the complaints were liable to be dismissed. Accordingly, he had set aside the orders of the Chief Judicial Magistrate in all the four matters and had dismissed the complaints under Section 203 of the Code of Criminal Procedure. Reliance was placed on the decision in Rama Gupta and Others v. Mis. Bakeman's Home Products Ltd.1, wherein such a view was taken by the Punjab & Haryana High Court.

7. Having felt aggrieved by this decision, the petitioner has approached this Court under Section 482 of the Code of Criminal Procedure, maintaining that the decision of the Lower Court was founded on a wrong view of the law