KASHI NATH PANDEY, J. - (1.) THIS revision has been filed against the order dated 16.8.2003, passed by Chief Judicial Magistrate, Ballia in Case No. 3099 of 2002, Shailesh Kumar Pandey Vs. Anil Kumar under section 138 of Negotiable Instruments Act, 1881, by which accused Anil Kumar has been summoned.
(2.) I have heard the learned counsel for the revisionist, learned counsel for the opposite parties and perused the record. According to the complainant Anil Kumar had given cheque no. 200-0425-11, dated 31.1.2002, Account No. 195, amounting to Rs. 3,54,000/- of Zila Sahakari Bank Ltd. Branch Ballia to the complainant. He deposited the same in Allahabad Bank, Ballia. According to the report of the Allahabad Bank, the cheque was deposited on 5.2.2002. It was returned on 1st March, 2002 on account of insufficiency of funds. Again it was deposited on 11.3.2002 and it was returned on 29.4.2002 on account of insufficiency of funds. Again it was deposited on 22.7.2002 and returned on 9.8.2002 on account of insufficiency of funds. In the oral statement the complainant stated that on the assurance of the accused to deposit the money in concerned Bank inspite of the fact that S T P L - Dishonour of C heque Judgements 13.1 [This product is licenced to keyur, ahmedabad, ahmedabad] the cheque was dishonoured he had not filed any complaint, believing that the opposite party Anil Kumar will deposit the sufficient amount in the concerned Bank and he will be able to withdraw the amount through cheque given by Anil Kumar, but when the cheque was dishonoured third time he sent a notice and thereafter filed a complaint.
(3.) 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 provisions of this Act, be punished with imprisonment for (a term which may be extended to two years), 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 thirty days) of the receipt of 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 prayee 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. Explanation ? For the purposes of this section,"debt or other liability' means a legally enforceable debt or other liability. Section 142. Cognizance of offences- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing made by the payee or, as the case may be, the holder in due course of the cheque. (b) such complaint is made within one month of the date on which the cause of action arises under clause ( c ) of the proviso to section 138: (Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period). (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate S T P L - Dishonour of C heque Judgements 13.1 [This product is licenced to keyur, ahmedabad, ahmedabad] of the first class shall try any offence punishable under section 138. ;