IMPORTANT POINT
In a prosecution u/s 138 of Negotiable Instruments Act reasons for dishonour of cheque are wholly, irrelevant and if amount remained unpaid despite demand notice served upon accused, he could be held responsible.

B.M. Gupta, J. - Feeling aggrieved with an order dt.24.11.06 passed by Special Judicial Magistrate, Gwalior in Criminal Case No. 978/05, this petition under section 482 of Cr.P.C. has been filed for setting aside this order. Vide the impugned order, the learned Magistrate has dismissed an application under section 245(2) of Cr.P.C. filed on behalf of the accused, who is the petitioner in this petition.

2. The facts in brief, are that, respondent filed one complaint against the petitioner for the offence punishable under section 138 of Negotiable Instruments Act (hereinafter referred to as the Act) on the allegation that Cheque No. 061028 issued by the petitioner, was dishonoured by the bank and returned without encashment with a memorandum dt.9th July, 2005. Thereafter, despite issuance of notice when the amount was not paid by the petitioner, complaint was filed.

3. During trial, the aforementioned application was filed for discharging the petitioner on the ground that the memorandum of bank is - ‘present again’ and on this note of the bank, the offence under section 138 of the Act, is not made out. This application has been dismissed by the learned Magistrate on the ground, that as the cheque was returned unpaid and despite issuance of notice, the payment was not made.

4. It is not disputed that the cheque was returned by the bank with a note of ‘present again’. It is also not disputed that despite notice payment of cheque amount was not made by the petitioner. In view of these admitted facts, the contention of Shri Sharma, the learned counsel for petitioner is that the offence under section 138 of the Act is made out if the cheque is returned only with a note (1) either because of the amount of money standing to the credit of the account is insufficient or (2) that it exceeds the amount arranged to be paid from that account by an agreement made with the bank. He further submits that none of these two clauses have been mentioned in the memorandum of the bank returning the cheque unpaid, hence the offence is not made out.

5. Shri M.B. Mangal, the learned counsel for the respondents submits that it is not the contention of the petitioner that there was sufficient amount available in his account at the relevant time and till date amount remain unpaid. Hence the offence is made out.

6. Very identical dispute arose in the case of Goaplast Pvt. Ltd. v. Shri Chico Ursula D’ Souza1, which reached upto the Apex Court through a Criminal Appeal No. 315 of 2003. While, delivering a judgment in this case, the Apex Court has narrated the facts of the case in opening paragraph as under:-

“...The facts are in a very narrow compass. Respondent No.1 addressed a letter to the appellant on 20th July, 1992 enclosing therewith ten post-dated cheques, each for an amount of Rs. 40,000/- by way of the refund of amount due from him to the appellant. The two cheques subject matter of the present appeal were dated 10.12.1994 and 10.4.1995. On 12th February, 1993 respondent No.1 again wrote to the appellant denying his liability to pay the amount under the aforesaid cheques on the ground that they were issued under a mistaken belief of liability and asked the appellant to treat the cheques as invalid. Respondent No.1 also wrote to the drawee Bank on 15th March, 1993 to stop payment of the aforesaid post-dated cheques issued by him. On 10th May, 1995, the appellant presented the two cheques dated 10.12.1994 and 10.4.1995 for payment but the said cheques were returned unpaid with the endorsement “present again” on 12.5.1995. On 24th May, 1995 the appellant issued notice under section 138B of the Act demanding payment of the amount of Rs. 80,000/- i.e. The total amount of the two cheques. On failure of the respondent No.1 to make the payment in pursuance to the notice, the appellant filed a complaint under section 138 of the Act on 7th July 1995...”

On these facts, the Courts below in that case concluded that the provisions of section 138 do not apply. Be