SAFIQ AHMED Vs. AHSAN HALIM
HIGH COURT OF SIKKIM
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(1.) This is a criminal revision seeking to quash the order of the learned Judicial Magistrate, East, by which she had taken cognizance of the case against the petitioner.
(2.) The complaint was filed by non-petitioner No. 1, in the Court of the District Magistrate, East on 15-4-92, stating therein that he had advanced a cash loan of Rs. 4,230/- to the accused petitioner, who issued two cheques one for Rs. 2,500/- dated 11-10-91 and the other for Rs. 1,730/- on 28-11-91 which was post dated for 1-3-1992. According to the complainant, he presented the cheques for the sum of Rs. 1,730/- on 1-3-1992 but it was not cashed. He received an intimation from the bankers that the cheque had been dishonoured for the reason "Payment stopped by the drawer". Complainant gave a notice under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act), but the accused petitioner did not pay the amount. Therefore, he filed this complaint praying that the accused may be punished for committing offence under Section 138 of the Act. Statement of the complainant was recorded who produced certain documents including the intimation from the bank. Substance of the allegations were read over to the accused petitioner who pleaded not guilty. Against this order, the present criminal revision has been filed. In this, complainant has filed a written reply to the revision petition. Arguments have been heard and the records perused.
(3.) The only point to be decided in this petition is, whether, when a cheque is returned by the bank as unpaid for the reason that "Payment stopped by drawer", whether it amounted to an offence under Section 138 of the Act. Section 138 of the Act was inserted by the Banking Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 (66 of 1988) which reads as follows :
"Section 138. Dishonour of cheque for insufficiency, etc., of funds in the account. - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account 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, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which my extend to one year, or with fine which may extend to twice the amount of the cheque, or with both : Provided that nothing contained in this Section shall apply unless - (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of the information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice." The objects and reasons appended to the Bill reads as under :
"3...................................................... "This clause (clause 4 of the Bill) inserts a new Chapter providing that where any cheque drawn by a person for the discharge of any liabilities returned by the bank unpaid for the reason of the insufficiency of the amount of money standing to the credit of the account on which the cheque was drawn or for the reason that it exceeds the arrangements made by the drawer of the cheque with the bankers for that account, the drawer of such cheque shall be deemed to have committed an offence. In that case, the drawer without prejudice to the other provisions of the said Act, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both.
(a) Such cheque dishonoured should have been presented with the Bank within a period of six months from the date of its drawal or within the period of its validity, whichever is earlier.
(b) The payee or holder in due course of such cheques should have made a demand for payment of the amount by giving notice in writing to the drawer of the cheque within fifteen days of receipt of information by him from the bank regarding return of the cheque unpaid.
(c) The drawer of the cheque should have failed to make payment of the amount to the drawee or holder in due course of cheque within fifteen days of receipt of the said notice. It has also been provided that it shall be presumed unless the contrary is proved, that the holder of such cheque received the cheque in the discharge of a liability. Defence which may or may not be allowed in any prosecution for such offence have also been provided to make the provisions effective. Usual provision relating to offences by companies has also been included in the said new chapter. In order to ensure that genuine and honest bank customers are not harassed or put to inconvenience, sufficient safeguards have also been provided in the proposed new chapter.";
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