A charge under Section 138 of the N.I. Act is not groundless under Section 245(2) Cr.P.C. if the essential ingredients of the offence are met and the original cheque is produced before the trial court, regardless of whether cognizance was initially taken on a photocopy.

Order

1. This petition has been filed by the accused-petitioner with a challenge to the order dated 03.01.2018 whereby the application filed under Sections 245(2) Cr.P.C. was dismissed and so also the order dated 17.03.2018 whereby the revision petition filed by the petitioner with a challenge to the order dated 03.01.2018 was also dismissed.

2. Learned counsel for the accused-petitioner submits that the subordinate Court has taken cognizance for the offence punishable under Section 138 of the N.I. Act solely on the basis of a photocopy of the cheque alleged to have been dishonored for want of sufficient fund in the bank account of the petitioner. He further submits that the original cheque which was given to the complainant by the accused-petitioner has been brought on record after two years of the filing of the complaint.

3. Learned counsel appearing for the complainant submits that initially the complainant submitted photocopy of the alleged cheque alongwith original memo received from the bank as regards the dishonor of the cheque for the reason that the original cheque was misplaced somewhere and on tracing it out, the same has been submitted before the trial court. He further submits that after submitting the original cheque, the complainant has been examined and the accused-petitioner has also cross-examined him.

4. Considered the submissions made by the counsel for the petitioner as well as learned counsel for the complainant and also perused the material made available on record.

5. The petitioner filed an application under Section 245(2) Cr.P.C. and submitted that order of cognizance dated 11.05.2016 was groundless in view of the fact that the same has been taken merely on the basis of a photocopy of the alleged cheque, said to have been dishonored for want of sufficient fund.

6. The Revisional Court has also dismissed the petition filed by the petitioner vide order dated 17.03.2018.

7. Section 245(2) Cr.P.C. provides that in case the competent Court finds that the charges levelled against the accused are groundless, then on such application same can be set aside after recording the reasons.

8. In the present case, as per the facts on record, the cheque was given by the petitioner to the complainant qua the debt or liability. On submitting the same, it was dishonored for want of sufficient fund in the bank account of the accused-petitioner.

9. The essential ingredients required for proceeding against a person for an offence punishable under Section 138 of the N.I. Act are that a cheque has been submitted by the accused as regards the debt or liability and same is dishonored for want of sufficient fund in the bank account of the person. Since both ingredients are there, so as to proceed against the accused-petitioner, it cannot be said that charge of offence under Section 138 of the N.I. Act, framed against the accused-petitioner is groundless.

10. Taking into consideration the overall facts and circumstances of the case and on going through the orders passed by the subordinate Court and finding that the original cheque has already been submitted before the trial Court, and after submitting the original cheque it was dishonored and the complainant has already been examined by the trial Court, this Court is of the opinion that this is not a fit case for exercising its inherent jurisdiction.

11. Hence, this criminal miscellaneous petition is dismissed as being devoid of merit.