IMPORTANT POINT
After the cheque is issued & before it is presented for encashment, notice is issued to payee or to holder in due course not to present the same for encashment & yet payee presents, the cheque to the Bank & when it is returned on instruction Section 138 of Negotiable Instruments Act does not get attracted.

M. Karpagavinayagam, J. - This is a revision preferred by the petitioner Mubarak Nisha, a Pardanashin lady, accused in C.C. No. 219/94 on the file of Chief Judicial Magistrate, Pudukkottai, which is directed against the order in Crl. M.P. No. 883/95 dismissing the petition filed by her for discharging her and dropping the proceedings under Section 227 read with Section 239 of the Code of Criminal Procedure.

2. The facts in brief are as follows:

The complainant, the respondent RM. Subramanian, filed a complaint against the petitioner under Section 138 of the Negotiable Instruments Act stating that on 14-1-1994 the accused/ petitioner borrowed a sum of Rs. 3lakhs from the complainant/respondent and issued three post-dated cheques. In respect of one such cheque, the complainant already filed a complaint before the flower Court in C.C. No. 62/94. In respect of other two cheques, the complaint in question was filed and the same was taken on file in C.C. No. 219/ 94 on the file of Chief Judicial Magistrate, Pudukkottai. After receipt of summons in the above case, the petitioner / accused filed a petition for discharge under Section 227 read with Section 239 of the Code of Criminal Procedure raising several questions of law in Crl. M.P. No. 883/95. However, the learned Chief judicial Magistrate, Pudukkottai, rejected the contentions and held that the complaint was maintainable, thereby the petition was dismissed. Hence the present revision.

3. At the outset, I must mention that the petition filed by the petitioner before the learned Chief Judicial Magistrate in Crl.M.P. No. 883/95 under Section 227 read with Section 239 of the Code of Criminal Procedure is misconceived. Section 227 of the Code of Criminal Procedure relates to the powers of, Sessions Court to frame charges. Section 239 relates to the powers of the Magistrate to discharge the accused in a warrant case. But, this case having been filed under Section 138 of the Negotiable Instruments Act relates to summons procedure contemplated under the Code of Criminal Procedure. As such, the petition filed by the petitioner before the lower Court under the relevant section was competent and the same was not maintainable. However as per the decision reported in K.M. Mathew v. State of Keralal , the Supreme

Court held that even in summons cases, the petition could be maintained under Section 204 Cr. P.C. to drop the proceeding. So, I have no hesitation to hold that though the section was filed by quoting wrong provisions, viz. Section 227 read with Section 239 Cr. P.C., it could be construed as having been filed under Section 204 Cr. P.C. to drop the proceedings and discharge the accused.

4. In the revision, though there are several contentions raised, I, feel that the revision has to be allowed on a simple and substantial ground, which is

1. A.I.R. 1992 S.C. 2206.

given as follows: In the complaint, it has been mentioned by the complainant that the husband of the accused requested the complainant not to present the other two cheques (the cheques in question) to the Bank for realisation. But, however, the complainant presented the two cheques dated 14-31994 and 14-4-1994 issued by the accused to him for realisation of the amounts with the Banker, Punjab National Bank, Pudukkottai Branch. On the basis of this, the petitioner contended in his petition in Crl. M.P. No. 883/95 that since the two cheques in question, which were presented to the Bank for collection, despite the request made by the husband of the accused not to present, the presentation, of the cheques without the knowledge of the petitioner / accused Gould not be construed to be an offence under Section 138 of the Negotiable Instruments Act. Besides this point, there were other grounds raised such as limitation, etc. Unfortunately, the Lower Court, while rejecting the contention raised by the petitioner and dismissing the petition, referred only the other points, but failed to refer this important point.

5. It was brought to