Section 138 of the Negotiable Instruments Act requires the issuer of the cheque to maintain an account in the bank at the time of issuance of the cheque for the section to apply.

JUDGMENT :

P. Rajamanickam, J.

This appeal has been filed by the complainant against the Judgment of acquittal passed by the Judicial Magistrate, Mettupalayam in C.C. No. 515/2003 dated 27.01.2005.

2. The appellant herein has filed a complaint under section 138 of the Negotiable Instruments Act stating that the respondent/accused had borrowed a sum of Rs. 2,00,000/- on 01.06.2003 as a hand loan and with a view to discharge the said loan, he issued a cheque for Rs. 2,00,000/- dated 02.09.2003. He further stated that the cheque was presented in the bank on 05.09.2003 for encashment. But the said cheque was returned with a bank memo dated 08.09.2003 stating that the account was closed. Thereafter, the complainant has sent a statutory notice on 30.09.2003 through his advocate and the said notice was received by the accused on 07.10.2003 and sent a reply with false averments. However, he did not make any payment within fifteen days from the date of receipt of the said notice and hence, the complainant has filed a complaint to punish the accused under section 138 of the Negotiable Instruments Act.

3. Based on the said complaint, the learned Judicial Magistrate, Mettupalayam, has taken the case on file and issued summons to the accused. After appearance of the accused, copies were furnished and accused was questioned with regard to the offence said to have been committed by him. The accused pleaded not guilty and hence, the learned Judicial Magistrate has tried the case.

4. During trial, the complainant examined himself as PW 1. He has stated in his evidence that on 01.06.2003, the accused borrowed a sum of Rs. 2,00,000/- as hand loan and in order to discharge the said loan, he has issued a cheque (Ex. P1) dated 02.09.2003 for Rs. 2,00,000/-. He further stated that the said cheque was presented in the bank on 02.09.2003 itself. The counterfoil of the challan was marked as Ex. P2. The said cheque was returned on 05.09.2003 as 'the account was closed'. The returned memo and the debit advice were marked as Ex. P3 and Ex. P4 respectively. The complainant has sent a statutory notice on 30.09.2003 to the accused. The office of the said notice has been marked as Ex. P5. The accused has received the said notice. The postal acknowledgment has been marked as Ex. P6. But thereafter, the accused did not make any payment and hence, the complainant has filed the above complaint.

5. The evidence on the side of the complainant was closed with PW 1 and thereafter, the accused was questioned under section 313 Cr.P.C, 1973 with regard to the incriminating circumstances found against the accused in the evidence of PW 1. The accused denied them as false and said that he was having evidence on his side and also examined himself as DW 1 and examined his brother Raghupathi as DW 2. He marked Ex. D1 to D6 as exhibits on his side.

6. The evidence on the side of the accused was closed with DW 2. The learned Judicial Magistrate, after hearing both sides acquitted the accused by his Judgment dated 27.01.2005. Aggrieved by the same, the complainant has preferred the present appeal.

7. This Court has sent notice to the respondent/accused and after receipt of the said notice, the respondent/accused entered appearance through Advocates, Mr. P. Kumanan and Mr. C.B. Naresh Kumar. This case has been listed today for final hearing by printing the name of the Advocates, Mr. P. Kumanan and Mr. C.B. Naresh Kumar as counsel for the respondent/accused. But, they have not appeared. Hence, after hearing the arguments of the learned counsel for the appellant and on perusing the records, the Judgment is being passed.

8. The learned counsel for the appellant has submitted that the trial court has committed an error in coming to the conclusion that since the accused closed the account even before issuance of the cheque, the offence under section 138 of the Negotiable Instruments Act will not attract. He further submitted that even if the cheque is returned on the ground that the account