The order impugned is passed in revision by the XIVth Addl. Sessions Judge, Indore, quashing the charge u/s. 139 of the Negotiable Instruments Act, 1881 (for short, 'the Act'), against the respondent, framed by the Judicial Magistrate, First Class, Indore, in Cr. Case No. 275/93.

For the purposes of this petition it is no more in dispute that respondent-accused had issued a cheque for Rs. 65,000/- in favour of the applicant-complainant. On presentation the cheque was returned by the Bank unpaid with the remark that the signature of the drawer do not tally with his specimen signature available with the Bank. As per advise of the respondent-accused, the complainant re-presented the cheque with the Bank, but the same was again returned unpaid with the similar remark. A demand notice as required by clause (b) of proviso to section 138 of the Act was served on the respondent but the amount still remained unpaid. The complainant, therefore, filed complaint, before the Magistrate alleging commission of offence u/s. 138 of the Act by the respondent-accused. The learned Magistrate after recording evidence u/Ss. 200 and 202 CrPC took cognizance of the offence against the respondent and on his appearance proceeded to explain particulars of the offence to him u/s. 138 of the Act. Aggrieved by the action of the Magistrate the respondent-accused preferred revision before the Sessions Court which was allowed and the complaint against the respondent was quashed vide order impugned thus giving rise to this petition u/s. 482 CrPC.

The learned Addl. Sessions Judge has quashed the complaint mainly on the ground that the cheque in question was not dishonoured either because of the amount of money standing to the credit of the account of the drawer is insufficient or that it exceeds the amount arranged to be paid from that account under same agreement with the Bank. Return of cheque on account of non-tally of signature of the drawer did not, in the opinion of learned ASJ, constitute on offence u/s 138 of the Act. Reasoning given by the learned ASJ, in my opinion, is wholly unsustainable in law.

In a recent decision in M/s. Modi Cements Ltd. v. Shri Kuchil Kumar Nandi [JT 1998 (2) SC 198], the Supreme Court has held --

Once the cheque is issued by the drawer a presumption under section 139 must follow and merely because the drawer issues a notice to the drawee or to the Bank for stoppage of the payment it will not preclude an action under section 138 of the Act by the drawee or the holder of a cheque in due course".

In Rakesh (1993 CrLJ 680), High Court of Bombay has held that reasons for dishonour of cheque are wholly irrelevant and cannot be taken into account by a Magistrate when a complaint u/s. 138 of the Act is presented. Similar view is taken by Punjab & Haryana High Court in Darshanlal (1997 CrLJ 4603).

In the instant case, return of cheque for the second time even after assurance given by the respondent-accused to the complainant and non-payment of money after service of demand notice did prima facie raises presumption of dishonesty on the part of the accused. Needless to add, the accused drawer will have an opportunity u/s. 139 of the Act to rebutt the presumption at the trial. However, the learned ASJ, was wrong in quashing the complaint at that stage of the trial.

In the result I allow the petition, quash the order dated 17.10.95 passed by the XIVth Addl. Sessions Judge, Indore, in Cr. Rev. No. 128/95 and direct that the respondent shall stand trial before the Magistrate on the charge u/s. 138 of the Act.

A Copy of the order along with record of the case be remitted back to the Court below immediately.