Decided on June 15,2012

Dr. Indrajeet Singh Appellant
State of Uttaranchal And Anr. Respondents


Barin Ghosh, C.J. - (1.) IN the instant case, the cheque has been dishonoured by the banker of the applicant on the ground that the cheque is a lost cheque. It was, accordingly, submitted that the ground of dishonour, being outside the purview of Section 138 of the Negotiable Instruments Act, proceedings initiated thereunder for dishonour of the said cheque is not maintainable. Merely because a police complaint was lodged that the subject cheque has been lost, banker could not refuse to honour the cheque and, at the same time, while refusing to honour the cheque, could not hold out that such dishonour was on account of the fact that the cheque is a lost cheque. By holding out so, the banker took upon itself to certify that the cheque, in fact, has been lost, which it could not do in the facts of the case, as the same was not lost from the custody of the banker, but from its customer. Failure to honour the cheque, on the ground that the same has been lost at the end of the customer, is an action on the part of the banker at the instance of the customer, which is nothing but a dishonour by the banker without any just reason, which will tantamount to dishonour either on insufficiency of credit available or exceeding the arrangement. Dishonour on any of those grounds will not bring home a charge under Section 138 of the Negotiable Instruments Act. The fact of discharge of a debt or other liability by the dishonoured cheque is to be established. The banker of the applicant at his instance purported to close an enquiry to that effect by acting in the manner the applicant wanted.
(2.) IN the circumstances, application is dismissed with costs of Rs. 20,000/ - to be paid by the petitioner to the respondent as costs for the present litigation and for stalling the proceeding for such a long period of time.;

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