Trial courts order of alteration of offence held not sustainable.

1. The Revisions directed against the order passed by the learned Judicial Magistrate-I, Kovilpatti in C.C. No. 305 of 2003 dated 1.4.2005.

2. The petitioner herein lodged a Complaint under 138 of Negotiable Instruments Act against the respondent herein.

3. The prosecution case in brief is as follows :

The respondent herein approached the complainant on 18.7.2002 and borrowed a sum of Rs. 1,25,000/- for developing his business and agreed to pay the amount with interest at the rate of 12% p.a. from 18.7.2002. On 18.7.2003, he issued a Mercantile Bank Cheque bearing No. 560027 for a sum of Rs.1,25,000/-. When the petitioner presented the cheque in Canara Bank on 21.7.2003, the cheque was returned dishonored, So, on 4.8.2003, the petitioner issued a notice to the respondent to repay the amount. The respondent received the same on 5.8.2003, and sent a reply with false allegation on 16.8.2003 and hence he cheated the petitioner and committed the offence punishable under Section 138 of the Negotiable Instruments Act.

4. Before the Trial Court P.W.1 was examined and Exs. P. 1 to 7 were marked on behalf of the prosecution and R.W. 1 and R.W. 2 were examined on behalf on the accused.

5. On consideration of the materials available on record, the learned Judicial Magistrate-I, Kovilpatti came to a conclusion that the offence was maintainable only under Section 420 I.P.C. and passed the following order :

6. Challenging the said judgment, the petitioner has approached this Court by filing the present Revision Case.

7. The point for consideration is :

Whether the judgment of the Trial Court is sustainable.

8. The point: According to the learned counsel for the petitioner, the respondent issued a cheque for the amount of Rs. 1,25,000/- borrowed by him and when presented in the Bank, the same was dishonored and thus he has committed the offence punishable under Section 138 of Negotiable Instruments Act. But the trial Magistrate without appreciating the materials in a proper perspective, has come to a wrong conclusion and altered the offence under Section 138 of Negotiable Instruments Act into Section 420 I.P.C. even without notice to the petitioner and on this ground, the order of the learned Judicial Magistrate-I, is liable to be set aside.

9. To substantiate his case, learned counsel for the petitioner relied on the following judgments :

(i) NEPC Micon Ltd. and others v. Magna Leasing Ltd., (1999) Crl.L.J. 2883.

(ii) Jaspal Singh Bedi v. State of Punjab and another, 2005 Crl. L.J. 1061.

(iii) Hashmikan M. Sheth v. State of Gujarat and another, 2004 Crl. L.J. 3628.

(iv) P. N. Salim v. P. J. Thomas and another, 2004 Crl. L.J. 3096.

(v) G. Venkataramaiah v. Sillakollu Venkateswarlu and another, 1999 Crl. L.J. 1219.

10. Learned counsel for the petitioner relied on NEPC Micon Ltd. and others v. Magna Leasing Ltd. , ( supra) and argued that though Section 138 is a penal statute, it is the duty of the Court to interpret it consistent with the legislative intent and the dishonour of the cheque by a Bank on the ground that account is closed would also the offence coming under Section 138 of Negotiable Instruments Act. In the above said decision, it was held as follows:

“Even though Section 138 is a penal statute, it is the duty of the Court to interpret it consistent with the legislative intent and purpose so as to suppress the mischief and advance the remedy. Section 138 of the Act has created a contractual breach as an offence and the legislative purpose is to promote efficacy of banking and of ensuring that in commercial or contractual transactions cheques are not dishonored and credibility in transacting business through cheques is maintained.”

11. Learned counsel further relied on the decision in Jaspal Singh Bedi v. State of Punjab and another ( supra) and argued that issuance of cheque on an account that had been closed would not absolve the accused of criminal liability under Section 138 of the Act. In the said decision, it w