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TMI Blog2024 (10) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the Code of Criminal Procedure, permitting the Magistrate to recall his order, whereby he has taken the cognizance and issued process against the accused - the observation of the learned Revisional Court is contrary to law and, as such, it is held that the Revisional Court was not right in returning the finding that the trial court had wrongly dismissed the application for dropping of the proceedings filed by the respondent herein. Whether the complaint for dishonour of cheque due to the reason account frozen is maintainable under section 138 of the Act? - HELD THAT:- The cheque was issued on 01.07.2014 and the same was dishonoured on 14.07.2014 and in absence of any finding as to when the account was frozen i.e. whether the account was frozen prior to the issuance of the cheque or after the issuance of the cheque and further as to whether the accounts of the respondent was having sufficient amount to honour the cheque at the time of issuance of cheque or not and rightly so because there was no material before the Revisional Court to return any such finding, the petitioner herein could not have been knocked out of the court at the threshold. The learned Revisional Court has pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide order dated 04.11.2017. The respondent being aggrieved of orders dated 23.08.2014 (order of issuance of process) and 04.11.2017 passed by the learned Trial Court, filed a revision petition thereby impugning both the orders mentioned above before the court of learned Principal Sessions Judge, Srinagar (hereinafter to be referred as the Revisional Court ). The learned Revisional Court vide its order dated 09.05.2018 quashed both the abovementioned orders, resulting into dismissal of the complaint. 3. Aggrieved of order dated 09.05.2018 passed by the Revisional Court, the petitioner has sought the quashing of the same on the following grounds: (i) That the learned Magistrate had rightly dismissed the application for dropping of the proceedings, as no provision for dropping of proceedings was available in the Code of Criminal Procedure. (ii) That the Revisional Court has not considered this aspect of the matter that even the complaints for dishonour of cheques on account of Closed Account or Payment Stopped by the Drawer are maintainable and likewise a complaint can be filed, even in case of dishonour of cheque due to frozen account. 4. The objections to the petition have been fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the trial court reveals that the complainant filed the complaint by alleging that the respondent owed an amount of Rs. 8,69,700/- and to discharge the said liability, he issued the cheque dated 01.07.2014 in favour of the petitioner which was drawn on Axis Bank Limited. The petitioner presented the said cheque for encashment with his bank but the same was dishonoured by the banker of the respondent vide memo dated 14.07.2014 with the endorsement Account Frozen . The notice was issued to the respondent which the petitioner claims, was received by the respondent and as the respondent did not make the payment within the stipulated period, he filed the complaint under section 138 of the Act against the respondent. 9. The record further depicts that after recording the statement of the petitioner and one witness, the learned Trial Court issued the process against the respondent for commission of offence under section 138 of the Act vide order dated 23.08.2014. The respondent thereafter filed an application before the learned trial court for dropping of the proceedings only on the ground that the complaint for dishonour of cheque due to frozen account, does not fall within the ambit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtracted as under: 15. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provisions of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of the Code. b. Accordingly, the observation of the learned Revisional Court is contrary to law and, as such, it is held that the Revisional Court was not right in returning the finding that the trial court had wrongly dismissed the application for dropping of the proceedings filed by the respondent herein. 13. Issue No: (ii) Whether the complaint for dishonour of cheque due to the reason account frozen is maintainable under section 138 of the Act? a. It is true that in terms of section 138 of the Act, the complaint for dishonour of cheque can be filed against the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent before us that the dishonour would constitute an offence only in the two contingencies referred to in Section 138 and none else. The contention was that Section 138 being a penal provision has to be construed strictly. When so construed, the dishonour must necessarily be for one of the two reasons stipulated under Section 138 and none else. The argument no doubt sounds attractive on the first blush but does not survive closer scrutiny. At any rate, there is nothing new or ingenious about the submission, for the same has been noticed in several cases and repelled in numerous decisions delivered by this Court over the past more than a decade. We need not burden this judgment by referring to all those pronouncements. Reference to only some of the said decisions should, in our opinion, suffice. XX XX XX 16. The above line of decisions leaves no room for holding that the two contingencies envisaged under Section 138 of the Act must be interpreted strictly or literally. We find ourselves in respectful agreement with the decision in Magma case that the expression amount of money is insufficient appearing in Section 138 of the Act is a genus and dishonour for reasons such as account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he bank. Dishonour on account of such changes that may occur in the course of ordinary business of a company, partnership or an individual may not constitute an offence by itself because such a dishonour in order to qualify for prosecution under Section 138 shall have to be preceded by a statutory notice where the drawer is called upon and has the opportunity to arrange the payment of the amount covered by the cheque. It is only when the drawer despite receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount that the dishonour would be considered a dishonour constituting an offence, hence punishable. Even in such cases, the question whether or not there was a lawfully recoverable debt or liability for discharge whereof the cheque was issued would be a matter that the trial court will examine having regard to the evidence adduced before it and keeping in view the statutory presumption that unless rebutted the cheque is presumed to have been issued for a valid consideration. ( emphasis added ) c. So far as the present case is concerned, the respondent had nowhere pleaded in his application for droppi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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