The issuance of cheques as security and their subsequent dishonour does not constitute an offence under Section 138 of the Negotiable Instruments Act.

K.S. Rathore, J.-The petitioner preferred this revision petition under Section 397 of the Criminal Procedure Code, 1973, against the order dated September 11, 2001, passed by the learned Additional Chief Judicial Magistrate (Communal Riots) Mini Secretariat, Jaipur City, Jaipur in criminal complaint No. 401 of 2001 (Mrs. Renu Gupta vs. Rahul Bhatia). This revision petition comes up before this Court on October 1, 2001. This Court vide order dated October 1, 2001, on the request of learned Counsel for the petitioner, treated this revision petition as a criminal miscellaneous petition under Section 482 of the Criminal Procedure Code.

2. The brief facts of the case are that the petitioner was working as a sub-broker in the share market of Jaipur and was managing his own office in 218, Shop No. 5, Ramgali No. 1, Raja Park, Jaipur in the name and style of Vinayak Investments, Jaipur. The petitioner paid a sum of Rs. 62,000 by account payee cheques to the complainant against the amount due. Though the complainant admits the aforesaid amount which was paid through account payee cheques, it is not disclosed by the complainant in her statement on which date, she paid Rs. 1 lakh to the petitioner by cash or cheque or in the shape of goods.

3. Anotice under Section 138 of the Negotiable Instruments Act, 1881 (for short the “Act”) was issued by the complainant wherein it was stated that four cheques of Rs. 25,000 each were given to the complainant against

Rs. 1 lakh. Details of the cheques are as under

A. Cheque No. 671765 dated July 29, 1997 Rs. 25,000.

B. Cheque No. 671763 dated August 2, 1997 Rs. 25,000.

C. Cheque No. 671764 dated August 2, 1997 Rs. 25,000.

D. Cheque No. 671766 dated August 2, 1997 Rs. 25,000.

4. Thecheque No. 671765 was presented by the complainant to the bank on July 29, 1997, which was returned unpaid on the ground of insufficient funds. The other cheques were also presented to the bank by the complainant which were also returned by the bank on account of insufficient funds. The complainant after completing the necessary formalities as contemplated under Section 138 of the Act, submitted a complaint before the Court of the Judicial Magistrate No. 6, Jaipur City on July 6, 1997, along with 18 documents in support of his case. Whereupon, cognizance was taken against the accused-petitioner on March 5, 1998, and was summoned by the trial Court and the statement of the complainant’s power of attorney holder Shri Sushil Gupta was recorded on October 27, 1998, and thereafter, the statement of accused petitioner under Section 313 of the Criminal Procedure Code was recorded in the year, 1998. In defence the accused examined three witnesses. When the matter came up for final arguments, the accused-petitioner moved an application under Section 311 of the Criminal Procedure Code for recalling Smt. Renu Gupta as a witness along with some documents on April 3, 2001. The learned trial Court after hearing both the parties dismissed the said application against which the present miscellaneous petition has been filed before this Court.

5. Learned Counsel appearing on behalf of the petitioner has challenged the order dated March 3, 1999, by which the trial Court has dismissed the application dated February 27, 1999, on the ground that there is inconsistency in the statement of the complainant-Smt. Renu Gupta. Namely, at some place, she claims that she is doing a business of money lending and at another place she writes that she was doing the business of share brokerage and therefore, only the witness herself can prove that what business she was doing and on what account, she is entitled to recover Rs. 1 lakh from the petitioner. It is also submitted by learned Counsel for the petitioner that the complainant is in possession of the promissory note of Rs. 1 lakh and four cheques of Rs. 25,000 each given to the complainant as security for payment. Therefore, the complainant was not entitled to present the cheques for payment unl