Decided on July 18,2013

State of Uttarakhand and others Respondents


- (1.) Respondent no. 2 Jasbir Kaur filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'), against the accused applicant Madhu Bhathla in the Court of learned Additional Chief Judicial Magistrate, Haridwar.
(2.) According to the complaint, the complainant invested Rs. 72,000/- in Super Selection Boutique, at the instance of the accused. The complainant and the accused were running said business as partners. The accused gave a cheque dated 31.12.2001, of Rs. 72,000/- (Union Bank of India) to the complainant. When the accused gave the said cheque, the husband of the complainant was present. The accused made the complainant to believe that the cheque will be encashed in time. When the cheque dated 31.12.2001 was presented for encashment in the Bank, the same was dishonoured. The complainant informed the accused regarding dishonour of the cheque. She (accused) also refused to arrange the money in her account. The complainant sent a notice to the accused through her counsel. The notice was received by the accused and was replied. A prayer was made in the complaint, to convict the accused under Section 138 of the Act. According to the complainant, the cheque was dishonoured for 'insufficiency of funds'. After the statements under Sections 200 Cr.P.C. and 202 Cr.P.C., accused was summoned to face the trial under Section 138 of the Act, vide impugned order dated 25.08.2003. Aggrieved against the said order, present application under Section 482 Cr.P.C. was moved. This fact is not in dispute that the accused applicant gave the cheque of Rs. 72,000/- to the complainant/respondent no. 2 as a guarantee. It is mentioned in paragraph 7 of the complaint itself that the accused gave the cheque to the complainant as a guarantee. This fact is also admitted by the learned Magistrate while passing the impugned order that the accused gave the cheque to the complainant as guarantee.
(3.) Learned counsel for the revisionist placed reliance on the ruling of Ms. Narayana Menon alias Mani vs. State of Kerala and another,2006 2 ACJ 411 and submitted that if the cheque is issued in security or for any other purpose, the same would not come within the purview of Section 138 of the NI Act. In Narayana Menon's case reference of 'security' is given in paragraph 22 of the Judgment. It was observed that before the acquaintance between the parties ripened into thick business relations, some security from the appellant was sought for by the respondent by way of abundant caution, wherefor only a blank cheque was given. In business practice some security is always asked for in similar transactions. It was held by the Hon'ble Supreme Court in paragraph 52 of the Judgment that: "if the cheque is issued for security or for any other purpose, the same would not come within the purview of Section 138 of the Act";

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