Dishonour of a cheque due to insufficient funds constitutes an offence under Section 138 of the N.I. Act, regardless of claims of theft, unless the evidence at trial proves otherwise.

JUDGMENT

Rajiv Gupta, J.

Heard learned counsel for the applicants, learned A.G.A. for the State and perused the record.

2. The instant application under Section 482 Cr.P.C. has been filed with the prayer to quash the impugned summoning order dated 31.03.2023 as well as entire criminal proceedings of Complaint Case No. 928 of 2022 ( Mukesh Kumar v. Arjun Singh ), under Section 138 of N.I. Act, Police Station Kotwali, District Etawah, pending in the court of Additional Chief Judicial Magistrate, Court No.02, Etawah.

3. As per the allegations made in the complaint, it is alleged that applicant had issued a cheque bearing cheque no. 300271 dated 29.07.2022 for an amount of Rs. 33,50,000/- in favour of opposite party no.2, however, on presentation of the said cheque before the Bank, the same was dishonoured with the remark "insufficient funds". After dishonour of the cheque, a notice was sent to the applicant to make good the payment, however, despite being noticed, the cheque amount was not paid and as such, the present complaint under Section 138 of N.I. Act has been filed.

4. On the basis of the said complaint, learned Magistrate after making the requisite enquiry under Sections 200 and 202 CrPC has summoned the applicant to face trial under Section 138 of Negotiable Instrument Act vide order dated 31.03.2023.

5. Learned counsel for the applicant has submitted that cheque, in question, has infact been stolen by opposite party no.2 and the same has been misused by him, therefore, the proceedings under Section 138 of N.I. Act can not be drawn against him.

6. Learned counsel for the applicant has further submitted that reason for the dishonour of the cheque as reported by the bank is "insufficient funds", as such also, proceedings under Section 138 of the Negotiable Instruments Act cannot be drawn against the applicant. He has further submitted that no due debt or liability exists as against the drawee, therefore, proceedings under Section 138 of N.I. Act can also not be drawn against him and the entire proceedings is therefore liable to be quashed.

7. Per contra, learned A.G.A. has submitted that learned Magistrate on the basis of allegations made in the complaint and after making requisite enquiry, has summoned the applicant to face trial under Section 138 of Negotiable Instrument Act vide order dated 31.03.2023.

8. Learned AGA has further pointed out that there is a legal presumption under Sections 118 and 139 of the N.I. Act against the applicant and as such, impugned summoning order is just, proper and legal and do not call for any interference by this Court. He has further submitted that there is absolutely no illegality or infirmity in the impugned summoning order, calling for any interference in exercise of inherent power under Section 482 CrPC.

9. Learned AGA has further submitted that even in the case of stolen cheque as claimed by the applicant, proceedings under section 138 of N.I. Act can always be drawn against him. He has further submitted that where dishonour of the cheque has been made for the reason of insufficient funds, then too offence under Section 138 of N.I. Act is clearly made out against the applicant. He has further submitted that in order to determine the question where the cheque has been dishonoured on the ground of insufficient funds, the proviso contained in Section 138 of Negotiable Instruments Act is required to be noticed, which reads as under :-

138. Dishonour of cheque for insufficiency, etc., of funds in the account.-- Where any cheque drawn by a person on an account maintained by him with a banker for pay