S.D. PANDIT, J.

1. RULE. Heard Mr. J. D. Ajmera for the petitioner and Mr. K. D. Vasavada for respondent No. 1 and Mr. Y. F. Mehta learned A.P.P. on behalf of respondent No. 2 at length on merits. Hence I proceed to dispose of the petitioner finally at the stage of admission.

2. ORIGINAL accused in Cri. Case No. 7290/95 on the file of Chief Judicial Magistrate, Surendranagar has filed the present petition for quashing the said criminal proceedings.

The respondent-Gunvantlal Shivlal Shah has filed the said private criminal case under Section 138 of the Negotiable Instruments Act, 1881 alleging that a cheque bearing No. 47787 drawn on Bank of Baroda, Surendranagar Branch given by the present petitioner for an amount of Rs. 30,000/- has been dishonoured by the bank and thereafter he had issued notice dated 29-9-95 calling upon the present petitioner to pay the amount but no reply to the said notice was given. The respondent has produced along with his complaint the cheque as well as the memo issued by the Bank of Baroda, Surendranagar and that the learned Magistrate was pleased to issue process against the present petitioner and therefore, the petitioner has come before this Court.

3. THE offence alleged against the present petitioner is said to have been committed by him under the provisions of Section 138 of the Negotiable Instrument Act. Therefore, it is necessary to consider the said provisions which run as under :

"138 Dishonour of cheque for insufficiency, etc. of funds in the account. ? Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have commuted an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of" the cheque, or with both : Provided that nothing contained in this Section shall apply unless ?

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. Explanation. ? For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability." If the above provisions of Section 138 of the Negotiable Instruments Act, 1881 are considered, then it would be quite clear that if the cheque is dishonoured either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that the cheque exceeds the amount alleged to be paid such person shall be deemed to have committed an offence. The bank memo produced by complainant along with complaint shows that the cheque was not honoured as there was alteration in the date on the said cheque. Copy of the cheque shows that the initial date was 4-5-94 and it has been altered to 4-5-95 by making alteration in the last figure of 4 in the date. Therefore, it is quite obvious that the cheque issued by the present petitioner was not dishonoured on account of insufficient funds in the account of the petitioner. Conseq