IMPORTANT POINT
Mala fide or ill-intended structural defect amounts to deliberate act of stopping payment by drawer of cheque.

Karuna Nand Bajpayee, J.—This criminal misc. application u/s 482 Cr.P.C. has been preferred with a prayer for quashing of the impugned summoning order dated 19.1.2012 passed by the court of A.C.J.M., Court No.7, Bareilly in complaint case no.4791 of 2011 (M/s Brijraj Associates Vs. Om Prakash Singh) u/s 138 Negotiable Instrument Act, P.S. Subhash Nagar, district Bareilly.

2. Heard learned counsel for the applicant and learned A.G.A. Perused the record.

3. The submission of the counsel for the applicant is that the cheque in question dated 5.12.2010 for an amount of Rs. 5,80,000 was dishonored by the S.B.I, Branch Sahupuri, Varanasi with an endorsement that the signature of the drawer of the cheque do not match with the signatures available with the bank and the signature of the drawer is incomplete on the cheque. Such endorsement of the Bank does not constitute the offence u/s 138 of N.I. Act in view of the language used therein.

4. It has also been submitted by the counsel for the applicant that the opposite party has also lodged the F.I.R. against the present applicant which was registered as case crime no. 654 of 2013, u/s 420 and 406 I.P.C. at P.S. Subhash Nagar district Bareilly for the same controversy and as such, two prosecutions cannot be launched against the applicant for the same incident.

5. In support of his submissions, learned counsel for the applicant has placed reliance on two case laws which are as under:

1. Mrs. Aparna A. Shah v. Sheth Developers Pvt. Ltd and another, 2013 (3) CCSC 1363 (SC),

2. Babulal Nainmal Jain v. Khimji Ratansha Dedhia, 1998 Law Suit (Bom) 384.

6. Per contra, learned A.G.A. has opposed submissions of applicant’s counsel and has submitted that the difference in signatures of the applicant in the cheque very well make out the offence u/s 138 N.I. Act and the pronouncement of Apex Court in Messrs. Laxmi Dyechem v. State of Gujarat and others, (2012) 13 SCC 375: 2013 (1) JIC 635) lays down that any such technical reason or endorsement of Bank for dishonour of cheque does not affect/disqualifies the prosecution under section 138 N.I. Act and would constitute the offence u/s 138 N.I. Act. I have considered the rival submissions of the parties in the light of record of criminal misc. application and the case laws cited by the parties.

7. The main thrust of the counsel for the applicant has been in respect of the structural defect in the cheque causing dishonour thereof. The perusal of record go to show that the complainant Brijraj Associates is a company engaged in construction of building and the present applicant had taken an amount of Rs.5,80,000 on 5.12.2010 from the complainant to get contract of construction of government premises. However, after much persuasion and demand for the return of said amount, the applicant handed over a cheque of the S.B.I, Branch Sahpuri, Varanasi with denomination of Rs. 5,80,000 on 15.6.2011. The complainant deposited the cheque in his account for encashment, whereupon the Bank informed that the signatures of drawer of the cheque are different and the signature on the cheque is incomplete too. With such endorsement, the cheque was returned as dishonoured. The complainant sent a registered notice A.D. to the applicant with an intention to have the payment of said amount of cheque within fifteen days, but no payment was made by the applicant. The complainant filed complaint case No. 4791of 2011 before the court of A.C.J.M.-VII, Bareilly with an allegation that the applicant has given said cheque to the complainant with knowledge that the cheque will not be honoured due to difference in signatures and due to his incomplete signature.

8. I have carefully gone through the case laws of Mrs. Aparna A.Shah v. Sheth Developers Pvt. Ltd and another (supra) and Babulal Nainmal Jain v. Khimji Ratansha Dedhia (Supra) cited by the counsel for the applicant. The case law of Mrs. Aparna A. Shah’s case has no application in the facts of present case as the same