ABDUL GAFOOR, J.

These cases come up before us on a reference by a learned single Judge. The question referred is whether Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') is attracted in respect of a cheque dishonoured on account of the closure of the account on which it was drawn, even prior to its drawal. The decisions of this Court reported in Joseph v. Philip Joseph (2000) 2 Ker LJ 679 and Japahari v. Priya (1993) 2 Ker LT 141 indicate that the account on which the cheque was drawn shall be maintained by the drawer at the time of drawal of the cheque to attract the said provision. It has been further held that Section 138 of the Act will not be attracted if the cheque has been drawn after the closure of the account. But, when the matter came up before the learned single Judge, a decision by the Bombay High Court reported in Shivendra v. M/s. Adineo, 1996 Cri. L.J. 1816 was pointed out. In that decision it was held that it was immaterial whether the account had been closed prior to or after the drawal of the cheque. That decision was rendered taking support from another Division Bench decision of that Court.

To answer the question, it is profitable to refer to the decisions reported in NEPC Micon Ltd. v. Magma Leasing Ltd. (1999) 4 SCC 253 : (1999 Cri LJ 2883) and Goa Plast (P) Ltd. v. Chico Ursula D'Souza (2003) 3 SCC 232 : (1999 Cri LJ 2883). In the former, after analysing the ingredients of Section 138, it was held as follows :

"6. From Section 138, it is apparent that

(i) The cheque should be 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".

(ii) The cheque should be returned by the bank unpaid either because :

(a) the amount of money standing to the credit of that account is insufficient to honour the cheque; or

(b) it exceeds the amount arranged to be paid from that account by a person with the bank.

(iii) In such a situation, such person (drawer of cheque) shall be deemed to have committed an offence.

7. Further, the offence will be complete only when the conditions in provisos (a), (b) and (c) are compiled with. Hence, the question is, in a case where a cheque is returned by the bank unpaid on the ground that the 'account is closed', would it mean that the cheque is returned as unpaid on the ground that 'the amount of money standing to the credit of that account is insufficient to honour the cheque’? In our view, the answer would obviously be in the affirmative because the cheque is dishonoured as the amount of money standing to the credit of 'that account' was 'nil' at the relevant time apart from it being closed. Closure of the account would be an eventuality after the entire amount in the account is withdrawn. It means that there was no amount in the credit of 'that account' on the relevant date when the cheque was presented for honouring the same. The expression 'the amount of money standing to the credit of that account is insufficient to honour the cheque' is a genus of which the expression 'that account being closed' is a specie. After issuing the cheque drawn on an account maintained, a person, if he closes 'that account' apart from the fact that it may amount to another offence, it would certainly be an offence under Section 138 as there was insufficient or no fund to honour the cheque in 'that account'. Further, the cheque is to be drawn by a person for payment of any amount of money due to him 'on an account maintained by him' with a banker and only on 'that account' the cheque should be drawn. This would be clear by reading the Section along with provisos (a), (b) and (c).

8. Secondly, proviso (c) given an opportunity to the drawer of the cheque to pay the amount within 15 days of receipt of the notice as contemplated in proviso (b). Further, Section 140 provides that it shall not be a defence in prosecution for an offence under Section 138 that the drawer h