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TMI Blog2009 (5) TMI 533X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-5-2009 - S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ. M.N. Krishnamani, Gp. Capt. Karan Singh Bhati, Ms. Aishwarya Bhati, Himanshu Singh for the Appellant. Gulshan Rai Nagpal, Jai Prakash for the Respondent. JUDGMENT S.B. Sinha, J. - Leave granted. 2. Whether return of a cheque by the bank on the ground that it was reported lost by the drawer would attract the penal provisions contained in section 138 of the Negotiable Instruments Act, 1881 (for short "the Act") is the question involved in this appeal. It arises out of a judgment and order dated 18-9-2007 passed by the High Court of Delhi in Criminal M.C. No. 2890 of 2007. 3. The said question arises in the following factual matrix : Appellant kept two blan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reply through his Advocate denying his liability falsely taking the plea that the cheque in question was lost as stolen by the complainant... 6. That the accused has taken the above-said false pleas knowing it fully well that he does not intend to make payment of the said cheque amount, and the complainant is thus compelled to file this complaint. 7. That the issuance of the cheque by the accused and informing wrongly his own bankers about the loss/theft of the cheque, with no intention to make payment thereof, rather showing that right from the time he issued the cheque, he had intention to cheat and defraud the complainant by making false representations and thus, the accused has wilfully committed an offence punishable under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code in the High Court of Delhi praying for quashing of the proceedings under section 138 of the Act on or about 6-9-2007 on the premise that the same was not maintainable. By reason of the impugned judgment, the said application has been dismissed. 7. Mr. M.N. Krishnamani, learned senior counsel appearing on behalf of the appellant, would submit that the High Court committed a serious error in passing the impugned judgment insofar as it failed to take into consideration that the complaint petition even if given face value and taken to be correct in its entirety does not disclose an offence under section 138 of the Act. 8. Mr. Gulshan Rai Nagpal, learned counsel appearing on behalf of the respondent No. 2, on the other hand, would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 payee 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." 10. A bare perusal of the aforementioned provision would clearly go to show that by reason thereof a legal fiction has been created. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e court must be satisfied that all the ingredients of commission of an offence under the said provision have been complied with. The parameters for invoking the provisions of section 138 of the Act, thus, being limited, we are of the opinion that 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 of the Act. 12. The court while exercising its jurisdiction for taking cognizance of an offence under section 138 of the Act 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 respon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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