- (1.)THIS petition, filed under Article 227 of the Constitution of India, seeks quashing and setting aside of the judgment and order dated 10th March, 1993 passed by the learned Sessions Judge, Nashik in Criminal Revision Application No. 334 of 1992. By the impugned order, the learned Judge has quashed the order issuing process against respondent No. 1 for the offences punishable under section 420 of the Indian Penal Code and section 138 of the Negotiable Instruments Act, 1881. The learned Sessions Judge has dismissed the complaint.
(2.)THE petitioner has filed a complaint being Criminal Case No. 84 of 1992 in the Court of the Judicial Magistrate. First Class, Pimpalgaon Baswant. Nashik against respondent No. 1 alleging that he has committed offences punishable under section 420 of the Indian Penal Code and section 138 of the Negotiable Instruments Act. It is stated in the complaint that the petitioner is a farmer. Respondent No. 1 purchased grapes grown by the petitioner and gave him a post-dated cheque to the tune of Rs. 32,000/- for the said purchase. He assured the petitioner that the remaining amount would be paid to him in cash. While giving him the cheque, respondent No. 1 assured the petitioner that there is sufficient amount in his bank account and the cheque would certainly be honoured. The petitioner believed him and gave him the grapes as agreed. The petitioner presented the cheque in the Pimpalgaon branch of the bank. However, the cheque was not honoured. The petitioner contends that with an intention to cause wrongful loss to the petitioner and gain to himself, though there were no sufficient funds in the bank, respondent No. 1 gave a cheque to the complainant and deceived him. The petitioner sent a notice to respondent No. 1 through his Advocate on 29th July, 1992 and thereby called upon respondent No. 1 to repay him the said amount. The said notice was not accepted by respondent No. 1. On these allegations the complaint came to be filed. The learned Judicial Magistrate, Class II, Pimpalgaon issued process on 19th August, 1992.
(3.)BEING aggrieved by the issuance of the process, respondent No. 1 preferred Criminal Revision Petition No. 334 of 1992 in the Sessions Court at Nashik. By judgment and order dated 10th March, 1993, the learned Sessions Judge, Nashik allowed the revision petition. He quashed the order issuing process against respondent No. 1 for the offences punishable under section 420 of the Indian Penal Code and section 138 of the Negotiable Instruments Act. While quashing the process and dismissing the complaint, the learned Sessions Judge held that in the facts of the case, the conduct of respondent No. 1 may at the most amount to a breach of contract and will make him liable for damages, but it does not attract the criminal offences under section 420 of the Indian Penal Code. He also held that as per the provisions of section 138 of the Negotiable Instruments Act, the drawer of the cheque can be held liable for prosecution for the offence under section 138 of the Negotiable Instruments Act, if the cheque is returned by the bank unpaid either because the amount of money standing in the credit of the account holder is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank. In the present case, the cheque is not dishonoured because of insufficient funds or because it exceeds amount arranged to be paid from that account. The cheque is dishonoured as the drawer of the cheque had closed his account before presentation of the cheque. The dishonour of a cheque, on such ground, is not covered by the provisions of section 138 of the Negotiable Instruments Act. In the view of the learned Sessions Judge, therefore, the learned Magistrate could not have taken cognizance of the alleged offence and issued process. On the question whether or not the complaint is premature the learned Sessions Judge held in favour of the petitioner.