* 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 CRL. L.P. 91/2022 Page 1 of 6 Signature Not Verified Digitally Signed 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.

CRL. L.P. 91/2022 Page 2 of 6 Signature Not Verified Digitally Signed

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. Avneet Bedi vs. Mr. Navin Malik, learned counsel for the petitioner further submits that even if the account is deemed to be „not maintained‟ by the accused as the same was blocked, the accused will have the onus to establish his bona fide qua the availabilit