1998(4) ALL MR 287
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

T.K. CHANDRASHEKHARA DAS, J.

Shri Babulal Nainmal Jain Vs. Shri Khimji Ratanshi Dedhia & Ors.

Cri Writ Petition No.335 of 1991

24th August, 1998

Petitioner Counsel: Shri A.P. MUNDARGI
Respondent Counsel: Ms.USHA KEJRIWAL, A.P.P.

Negotiable Instruments Act (1881) S.138 - Dishonour of cheque - Accused issuing cheque in Non-MICR form - Bank dishonoured cheque with remark "refer to drawer" - Drawer refusing to replace cheque - Refusal held does not amount to any offence under S.138.

If a cheque is returned on account of any structural defect i.e. any defect in its form, want of signature, date has not been properly written, figure of the amount has been over written or erasures in the drawer's name etc. the same will not amount to an offence punishable under Sec.138 of the Negotiable Instruments Act. It is clear from the complaint that only fault committed by the petitioner is that he has refused to replace the cheque. Nothing was spelt out in the complaint about the insufficiency of fund. In view of this, I find that the learned Magistrate has not properly applied his mind before issuing summons against the appellant. [Para 1]

JUDGMENT

JUDGMENT :- The Petitioner approached this court challenging the summons issued by Chief Metropolitan Magistrate, second court, Mazagaon in Cri. Case No.57/W/89. Admittedly the petitioner had issued cheque for Rs.15,750.92 on 12.6.1989 drawn on Dombivali Nagri Sahakari Bank Ltd., Dombivali. The cheque was returned without payment with remarks "refer to drawer". The learned counsel for the Petitioner Mr.Mundargi argues that no offence under Sec.138 of the Negotiable Instrument Act is disclosed in the light of the averments made in the complaint. To appreciate this argument, it is beneficial to extract the contents of the complaint.

"Thereafter the accused persons issued a cheque bearing No.116-43 dated 12.6.89 for Rs.15,750.92 drawn on Dombivali Nagri Sahakari Bank Ltd., Dombivali but this cheque was not MFCR. Therefore, the complainant society wrote back a register letter dated 14.7.89 to the accused, calling upon the said accused that the said cheque was not accepted by the bank. However, although the accused came to know the above facts from our aforesaid letter dated 14.7.89, he failed and neglected to replace the cheque, moreover, he failed to reply the said letter.

However, the complainant society presented the said cheque through Dena Bank and asked to give any endorsement, hence, the said Bank sent the said cheque for clearance to Dombivali Nagri Sahakari Bank Ltd., Dombivali. Dena Bank sent a letter to me stating that your cheque which was presented to our bank was dishonoured with the remark "refer to drawer".

From the above pleadings it is clear that the cheque in question was defective. It was not in its proper form as expected. It was not in the form of M.I.C.R.(Not computerised form, according to counsel). The bank asked them to replace it and the petitioner refused to replace it. According to Mr.Mundargi, the cheque is returned only on account of the said defect and not due to any insufficiency of fund in the credit of the drawer of the cheque. I find considerable force in that contention. When the complaint discloses that the cheque was returned not because of any reasons attributable to the defrauding of the Creditor or to the lack of credit etc. it is illegal on the part of the Magistrate to issue summons on the assumption that prima facie case has been disclosed against the petitioner under Section 138 of the Negotiable Instruments Act. As pointed out earlier, it is only a defect in drawing the cheque. If a cheque is returned on account of any structural defect i.e. any defect in its form, want of signature, date has not been properly written, figure of the amount has been over written or erasures in the drawer's name etc. the same will not amount to an offence punishable under Sec.138 of the Negotiable Instruments Act. It is clear from the complaint that only fault committed by the petitioner is that he has refused to replace the cheque. Nothing was spelt out in the complaint about the insufficiency of fund. In view of this, I find that the learned Magistrate has not properly applied its mind before issuing summons against the appellant. The complaint is therefore, liable to be quashed as it is sheer abuse of the jurisdiction of the court.

In the result, writ petition is allowed.

Rule is made absolute in terms of Prayer Clause (b).

In the circumstances, no orders as to costs.

Prayer Clause (b) :

"Order of issuance of Process dated 15th August, 1989 passed by the Learned Metropolitan Magistrate, 2nd Court, Mazgaon in Criminal Case No.57/W/89 be quashed and set aside and the petitioner be discharged from the case."

Petition allowed