Stoppage of payment by the drawer does not excuse the infringement of Sec.138 of the Negotiable Instruments Act, 1881.

, J.

1. - Uggar Sain a partner of M/s. Satish Di Hatti, Main Bazar, ahmedgarh, borrowed a sum of Rs.30,000/- on 30.7.1991, from the complainant jagan Nath, on account of urgent need and issued a cheque dated 31.7.1991. The cheque was dishonoured by the Punjab National Bank ahmedgarh and Jagan Nath instituted a complaint under Sec.138 of the negotiable Instruments Act, 1881. After recording evidence, the Judicial Magistrate 1st class, Malerkotla issued a summoning order on 21.2.1992. The revision filed against the summoning order was dismissed by the learned Additional sessions Judge, Sangrur on 22.10.1992. Aggrieved against it the present petition under Sec.482 of the Code of Criminal Procedure has been moved.

2. On behalf of the petitioners, it has been urged that the payment of the cheque was stopped prior to its presentation. On behalf of the complainant, in the reply, it has been specifically averred that the accused fraudulently obtained a loan of Rs.30,000/- on 30.7.1991 though his account No.1440 was already closed about a week earlier on 25.7.1991 as is evident from the evidence of PW 2 Shri Bhupinder Singh Clerk-cum-Cashier of the Punjab National bank, Ahmedgarh.

3. The learned counsel for the petitioners has referred to Abdul Samad V/s. Satya Narayan Mahawar, 1990 (2) Recent Criminal Reports 333 : [vol.1 DCTC 89] and argued that stoppage of payment by the drawer would not amount to an infringement of Sec.138 of the Negotiable Instruments Act, 1881 . However, the facts and circumstances of the aforesaid case were distinguishable inasmuch as in that case the cheque was returned unpaid as the drawer had stopped the payment on account of civil litigation, pending between the parties. Here, the borrower was not expected to issue a post dated cheque in lieu of the loan received by him in advance knowing that he himself had no money in the bank.

4. On the other hand, the learned counsel for the respondents has referred to Thomas Varghese V/s. P. Jerome, 1993 (1) Recent Criminal Reports 83 : [vol.1 DCTC 317] wherein it was observed that if the bouncing of the cheque was on account of insufficiency of funds belonging to the drawer then the drawer will be subjecting himself proceedings under section 138 of the Act.

5. There is no good ground to exercise the powers under section 482 of the Code of Criminal Procedure and the present petition challenging the order of the learned Judicial Magistrate 1st Class, dated 21.2.1992 and of the Additional sessions Judge, dated 22.10.1992, is hereby dismissed. The parties shall appear in the trial Court at Malerkotla a on 1.6.1993. Petition dismissed.