JUDGMENT

Vivek Varma, J.

Supplementary affidavit filed by the counsel for the applicant, is taken on record.

2. The present application under Section 482 Cr.P.C. has been filed with the prayer to quash the orders dated 01.11.2022 and 25.05.2022 passed by Civil Judge (Sr. Div.)/Additional Chief Judicial Magistrate, Ghaziabad in Complaint Case No. 3531 of 2022 (Menika Rani v. Rakesh Kumar), under Section 138 of Negotiable Instrument Act, Police Station Kotwali, District Ghaziabad.

3. In brief, the opposite party no.2 filed a complaint under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') against the applicant in the Court of Civil Judge (Sr. Div.)/Addl. Chief Judicial Magistrate, Ghaziabad with the allegation that Cheque No.039007 issued by the applicant drawn on the Bank of India for an amount of Rs. 1,00,000/- in favour of the opposite party no.2 was presented for encashment at Bank of India, Branch Navyug Market, Ghaziabad but it was returned with the remark "account closed" vide memo dated 22.04.2022. On 26.04.2022 a legal notice was sent to the applicant. Despite service of notice, the applicant did not make any payment.

4. The complaint was filed on 25.05.2022 supported by an affidavit. The learned Magistrate summoned the applicant vide order dated 01.11.2022.

5. The only submission raised by the counsel for the applicant is that since the cheque was returned with the note 'account closed', section 138 of Negotiable Instruments Act would not be attracted.

6. On the other hand, learned AGA submits that the ingredients of section 138 of N.I. Act are clearly made out against the applicant.

7. Heard counsel for the applicant and learned AGA for the State.

8. The issue as to whether the dishonour of a cheque on the ground that the 'account is closed' would attract section 138 of the Negotiable Instruments Act has been considered by the Hon'ble Supreme Court in the case of NEPC Micon Ltd. and others v. Magma Leasing Ltd. reported in (1999) 4 SCC 253. The Apex Court held that such dishonour would be considered a dishonour within the meaning of section 138 of Negotiable Instruments Act.The relevant paragraph no. 15 is quoted herein below:

"15. In view of the aforesaid discussion we are of the opinion that 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. As stated above, 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 dishonoured and credibility in transacting business through cheques is maintained. The above interpretation would be in accordance with the principle of interpretation quoted above "brush away the cobweb varnish, and shew the transactions in their true light" (Wilmot, C.J.) or (by Maxwell) "to carry out effectively the breach of the statute, it must be so construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited". Hence, when the cheque is returned by a bank with an endorsement "account closed", it would amount to returning the cheque unpaid because "the amount of money standing to the credit of that account is insufficient to honour the cheque" as envisaged in Section 138 of the Act."

9. The said judgement was also followed by the Apex Court in Laxmi Dyechem v. State of Gujarat and others reported in (2012) 13 SCC 375. The relevant paragraph nos. 13 to 16.1 are quoted herein below:-

"13. We may also at this stage refer to the decisions of this Cou