IMPORTANT POINT
The dishonour of a cheque due to 'Account Closed' falls within the parameters of Section 138 of the N.I. Act, and the presumption under Section 139 applies.

JUDGMENT :

1. Heard Sri Manish Tiwari, learned Senior Counsel assisted by Sri Praveen Kumar Singh for the applicant, Sri Rajesh Pratap Singh, learned counsel for the opposite party no.2 and Sri Kamleshwar Singh, learned A.G.A. for the State.

2. The instant application under Section 482 Cr.P.C. has been filed seeking quashing of the summoning/cognizance order dated 19.10.2020 in Complaint Case No.14988 of 2020 (Satyadev Jayswal vs. Jatan Kumar Singh) under Section 138 of the Negotiable Instruments Act (hereinafter referred as 'the N.I.Act' ), P.S.- Cantt, District- Varanasi, pending in the court of learned Additional Chief Judicial Magistrate, Court No.3, Varanasi.

3. The facts of the case, in brief, are that the aforesaid FIR has been lodged by the opposite party no. 2 with the allegation that he was having commercial relations with the applicant herein and in relation to the business the applicant has issued cheque in his favour for an amount of Rs.29,07,254/- drawn on ICICI Bank Branch Pahadiya District Varanasi dated 21.5.2020. It is also alleged that on presenting the cheque in question on 15.6.2020 before the Bank concerned it has been returned on 17.6.2020 with the remark that “Kindly contact Drawer/Drawee Bank. It is also alleged that on the assurance of the applicant again the cheque was presented to the Bank on 19.6.2020 but it was returned by the Bank on 20.6.2020 with the remark “Account Closed”. It is further alleged that the demand notice dated 23.6.2020 was issued to the applicant which was received by him on 26.6.2020 but he failed to pay the cheque amount. Therefore, the instant complaint has been filed by the opposite party no. 2 against the applicant under section 138 N.I. Act.

4. Learned Senior Counsel for the applicant submits that in the instant case cheque has been dishonoured by the Bank with the remark "Account Closed". Learned Senior Counsel submits that the dishonour of cheque for the reason Account closed is not covered within the two conditions laid down in Section 138 of the N.I. Act i.e., firstly, the amount of money standing to the credit of the account is insufficient to honour the cheque and secondly, it exceeds the amount arranged to be paid from the account by an agreement made with the Bank. Learned Senior Counsel submits that since the cheque has not been dishonoured for the aforesaid two reasons, therefore, the complaint under Section 138 of the N.I. Act, is not maintainable.

5. Learned Senior Counsel for the applicant has further raised two contrary submissions, firstly, the cheque was issued during the course of business and not for the discharge in whole or in part of any debt or liability and secondly the said cheques have been stolen or lost.

6. Per contra, learned counsel for the opposite party no.2 submits that after issuing the cheque it was the duty of the drawer of the cheque to maintain the said account and make the arrangements for honor of the cheque. If the drawer of the cheque fails to maintain that account and fails to maintain the sufficient funds with the Bank to honour the cheque, the offence under Section 138 of the N.I. Act, is made out. Learned counsel for the opposite party no.2 has relied upon the judgement of the Apex Court in NEPC Micon Ltd. v. Magma Leasing Ltd., (1999) 4 SCC 253. So far as the contention of the learned counsel for the applicant to the effect that the said cheque was issued during the course of business and not for discharge of any liability, learned counsel for the opposite party no. 2 submits that in view of the presumption under Section 139 of the N.I. Act, once the cheque has been issued by the drawer, it shall be presumed that the same has been issued for discharge of a legally enforceable debt or liability. So far as the contentions that the cheque was stolen is concerned, the same is the defence of the applicant, which has to be established during trial of the case and that cannot be considered while exercising the powers under Section 482 Cr.P.