- (1.) By this criminal misc. petition, a challenge is made to the order dated 17th October, 2003 passed by the Revisional Court. By the aforesaid order, the revision filed by the non-petitioner was accepted.
(2.) Learned counsel for the petitioner submitted that on a complaint under Section 138 of Negotiable Instruments Act 1881 (for short "NI Act"), cognisance of the offence was taken by the competent court and the case was then kept for framing of charges. The revision petition against the said order was preferred by the non-petitioner - accused and has been accepted. The proceedings under Section 138 of NI Act was challenged on the ground that cheque in question was given as guarantee, thus on offence under Section 138 of NI Act is not made out. A reference of complaint made by the petitioner was given where it is admitted that cheques were given towards guarantee. The Court below did not find those cheques towards debt or other liabilities. The complaint was accordingly quashed so as the order passed by the learned Magistrate.
(3.) It is also submitted that impugned order was passed by the Revisional Court not only in ignorance of Section 138 of NI Act but the judgment of Hon'ble Apex Court in the case of I.C.D.S. Ltd. v. Beena Shabeer & Anr., 2002 AIR(SC) 3014. The judgment of aforesaid was given by the Hon'ble Apex Court on the similar facts. The cheque given by the guarantor was taken to be on offence under Section 138 of NI Act, if dishonoured by the Bank. The Hon'ble Apex Court did not approve the view taken by the High Court. The prayer is accordingly made to quash the impugned order in the light of the judgment supra.;