CRL. L.P. 91/2022

Page 1 of 6

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: December 22, 2023.

%

Pronounced on: January 05, 2024.

+

CRL.L.P. 91/2022

MR. SACHIN JAIN & ORS.

..... Petitioners

Through:

Mr. Manu Bansal and Mr. Rohit

Nain, Advocates

Versus

MR. RAJESH JAIN

..... Respondent

Through:

Ms. Aashi Jain, Advocate.

CORAM:

HON'BLE MR. JUSTICE SAURABH BANERJEE

J U D G M E N T

1.

The petitioner, vide the present leave petition under Section 378(4)

of the Code of Criminal Procedure, 1973, seeks leave to appeal against the

judgment dated 02.09.2021 passed by the learned Metropolitan

Magistrate, NI Act-04, Central District, Tis Hazari Courts, Delhi [learned

MM] in CC No.516578/2016 titled “Sukhmal Chand Jain vs. Rajesh

Jain” filed under Section 138/142 of the Negotiable Instruments Act,

1881 [NI Act] and seeks to punish the respondent in accordance with

provisions of the NI Act.

2.

As per complaint, the respondent/ accused [hereinafter referred to as

„Respondent‟] had issued cheques bearing number(s) 001868, 001781 and

001791 dated 04.09.2014, 04.09.2014 and 08.09.2014 respectively, each

for an amount of Rs.5,00,000/- (Rupees Five Lakhs Only) to the petitioner/

complainant [hereinafter referred to as „Petitioner‟] therein, in discharge

Digitally Signed

By:BABLOO SHAH

Signing Date:05.01.2024

18:37:42

Signature Not Verified

CRL. L.P. 91/2022

Page 2 of 6

of his legal liability. Upon presentation, the said three impugned cheques

were returned twice. Firstly, vide return memo dated 18.09.2014 with

remarks “Funds Insufficient” and secondly, vide return memo dated

01.12.2014 with remarks “Account Blocked”, and the same was conveyed

to the complainant on 04.12.2014.

3.

In pursuance thereof, a Legal Notice dated 26.12.2014 was sent to

the respondent by the counsel for the petitioner. Receiving no response

thereto, a complaint was made by the petitioner before the learned MM.

4.

In the impugned judgment, while the learned MM found all the

other ingredients to constitute an offence under Section 138 of the NI Act

fulfilled, however, the complaint against the respondent was not found

maintainable as the petitioner failed to prove that the cheques were drawn

on an account maintained by the respondent on the date of presentation of

the three impugned cheques, and the respondent was acquitted of the

offence under Section 138 of the NI Act.

5.

Hence, the present petition before this Court, wherein learned

counsel for the petitioner submits that the learned MM erred in ignoring

the settled position of law set out by the Hon‟ble Supreme Court as well as

the Hon‟ble High Court(s), who have rejected the strict interpretation of

Section 138 of the NI Act, while accommodating the situations arising out

of the deliberate acts/ omissions of the accused person such as „account

closed‟, „stopped payment‟ and „signature mismatched‟ etc. as such

instances have been treated as species of the ingredient of the offence

under Section 138 of the NI Act i.e., „amount of money standing to the

credit of account is insufficient‟. Reliance in this regard is placed upon

Laxmi Dyechem vs. State of Gujarat (2012) 13 SCC 375.

Digitally Signed

By:BABLOO SHAH

Signing Date:05.01.2024

18:37:42

Signature Not Verified

CRL. L.P. 91/2022

Page 3 of 6

6.

Learned counsel for the petitioner then placing reliance upon

Pankaj Mehra & Anr. vs. State of Mahrashtra & Ors. (2000) 2 SCC 756

submits that jurisprudence of Section 138 of the NI Act provides the

drawer two opportunities, firstly, presentation of cheque and secondly, a

15 day statutory period after receipt of Legal Notice to make the payment

thereof. Therefore, non-payment towards the cheque during this 15 day

period manifests the malafide of the accused person.

7.

Lastly, relying upon the order dated 31.10.2013 of a Coordinate

Bench of the High Court of Karnataka in Crl. P. No. 3879/2013 titled Mrs.