I think Mr. Deeksh*tulu is talking about below stated judgement
Supreme Court
Brief
Citation
Judgement
[2009] 92 SCL 370 (SC)
SUPREME COURT OF INDIA
Raj Kumar Khurana
v.
State of (NCT of Delhi)
S.B. SINHA
AND DR. MUKUNDAKAM SHARMA, JJ.
CRIMINAL APPEAL NO. 913 OF 2009
MAY 5, 2009
Section 138 of the Negotiable Instruments Act, 1881 - Dishonour of cheque for insufficiency, etc., of funds in account - Whether return of a cheque by bank on ground that it was reported lost by drawer would attract penal provisions contained in section 138 - Held, no
FACTS
The appellant kept two blank cheques in his office along with some stamp papers. They were said to have been stolen from his office. Information as regards missing of the said cheques was also given to the bank. He lodged a first information report with regard thereto. The blank cheques were allegedly filled up on 24-6-2001. They were presented before the bank but the same were returned dishonoured with the remarks ‘said cheque reported lost by the drawer’. Respondent No. 2 thereafter, upon issuance of notices in terms of the proviso appended to section 138, filed a complaint petition alleging that the accused had issued the cheques and had wrongly informed his own bankers about the loss/theft of the cheques to avoid payment thereof and, thus, the accused had wilfully committed an offence punishable under sections 138 and 142. The appellant filed an application under section 482 of the Criminal Procedure Code, 1973 praying for quashing of the proceedings under section 138 on the premise that the same was not maintainable. The High Court, however, dismissed the application. In instant appeal, the appellant contended that the High Court had committed a serious error in passing the impugned order insofar as it failed to take into consideration that the complaint petition, even if given face value and taken to be correct in entirety, did not disclose an offence under section 138.
HELD
A bare perusal of the section 138 would clearly show that by reason thereof a legal fiction has been created. A legal fiction, as is well known, although is required to be given full effect, yet has its own limitations. It cannot be taken recourse to for any purpose other than the one mentioned in the statute itself. [Para 10]
Section 138, moreover, provides for a penal provision. A penal provision created by reason of a legal fiction must receive strict construction. Such a penal provision, enacted in terms of the legal fiction drawn, would be attracted when a cheque is returned by the bank unpaid. Such non-payment may either be: (i) because of the amount of money standing to the credit of that account being insufficient to honour the cheque, or (ii) it exceeds the amount arranged to be paid from that account by an agreement made with that bank. Before a proceeding thereunder is initiated, all the legal requirements therefor must be complied with. The Court must be satisfied that all the ingredients of commission of an offence under the said provisions have been complied with. The parameters for invoking the provisions of section 138, thus, being limited, refusal on the part of the bank to honour the cheque would not bring the matter within the mischief of the provisions of section 138. [Para 11]
The Court while exercising its jurisdiction for taking cognizance of an offence under section 138 was required to consider only the allegations made in the complaint petition and the evidence of the complainant and his witnesses, if any. It could not have taken into consideration the result of the complaint petition filed by the respondent No. 2 or the closer report filed by the Superintendent of Police in the First Information Report lodged by the appellant against him. [Para 12]
A contention had been raised that the appellant did not have sufficient funds in his bank account. Such an allegation had not been made in the complaint petition. In any event, it was for the bank only to say so, as the complainant was not supposed to have knowledge in regard to the amount available in the account of the appellant. [Para 13]
Keeping in view the facts and the circumstances of the case, the complaint petition did not disclose an offence punishable under section 138. [Para 14]
For the reasons aforementioned, the impugned judgment being unsustainable was to be set aside. The appeal was to be allowed. [Para 15]
CASE REVIEW
Decision of Delhi High Court (para 15) set aside.
CASES REFERRED TO
State of A.P. v. A.P. Pensioners Association [2005] 13 SCC 161 (para 10), R. Kalyani v. Janak C. Mehta [2009] 1 SCC 516 (para 11) and DCM Financial Services Ltd. v. J.N. Sareen [2008] 8 SCC 1 (para 11).
M.N. Krishnamani, Gp. Capt. Karan Singh Bhati, Ms. Aishwarya Bhati, Himanshu Singh for the Appellant. Gulshan Rai Nagpal, Jai Prakash for the Respondent.
But this jugement has confused everybody a lot ........ Tanmoy, previously quite a number of reasons mentioned in the Bank dishonour memo came under the purview of 138 N. I. Act but ... we should see how this judgement influences the new cases .....
