Provisions of Section 138 cannot be attracted.

S. PRATAP SINGH J.

The accused in C. C. No. 894 of 1991 on the file of the IX Metropolitan Magistrate, Saidapet, Madras, has filed this petition, under section 482, Criminal Procedure Code, praying to call for the records in the aforesaid C. C. No. 894 of 1991 and quash the same. The respondent has filed a private complaint against the petitioner arraying him as the accused. The allegations in it are briefly as follows :

The accused wanted a certain amount as a hand loan. The complainant, agreed and gave a hand loan. The accused promised to return the borrowed amount in stages and parted with post-dated cheques. One of the cheques, dated December 24, 1990, issued by the accused for Rs. 36, 250 was presented for encashment on January 11, 1991. It was returned with an endorsement " account closed " with a bank memo, dated January 18, 1991. The complainant sent a notice through a lawyer on January 19, 1991, to the accused by registered post with acknowledgment due. It was returned with an endorsement " not found " at the delivery time. The accused had deliberately evaded receipt of the registered notice. Hence, the complaint.

The petitioner seeks to quash this complaint.

Mr. A. Ramesh, learned counsel appearing for the petitioner, would contend.

(i) The cheque was returned with an endorsement " account closed " and hence the requirements of section 138 of the Negotiable Instruments Act are not satisfied and the offence is not made out.

(ii) Notice sent by the complaint was not served on the accused and hence occasion to pay the amount within 15 days of service of notice does not arise and on that ground also the offence is not complete. Per contra, Mr. K. Ravichandra Babu, learned counsel for the respondent, would contend that the accused had not intimated the complainant that he had closed the account and while so, the return of the cheque with endorsement " account closed " would satisfy the requirements of the Act.For appreciating the rival contentions regarding the first ground, the first portion of section 138 of the Negotiable Instruments Act needs extraction. It reads as follows :

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 credit of that account is insufficient to 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 committed 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. " (emphasis supplied)

A plain reading of section 138, Negotiable Instruments Act, would show that only if the cheque was returned by the bank unpaid because of the above two contingencies, is an offence under section 138 of the Negotiable Instruments Act made out. In the instant case, the cheque was returned unpaid with the endorsement " account closed ". Hence, this case does not fall within the ambit of section 138 of the Negotiable Instruments Act. In this regard, learned counsel for the petitioner relied upon the ruling in G. F. Hunasikatimath v. State of Karnataka [1991] 1993 (76) CC 278, 1 Crimes 226, 1990 Kar 3881 ; 1993 (76) CC 278, 1 Crimes 226, 1990 Kar 3881. In that case, dishonour of the cheque was on the ground " account closed ". The learned Magistrate had dismissed the private complaint filed on such dishonour, for offence under section 138, Negotiable Instruments Act. Aggrieved by that order, the complainant took up the matter to the High Court under section 482, Criminal Procedure Code. It was held that section 138 of the Negotiable Instruments Act provides for punishment only in case th