B.L. Shindhe vs B. Shamachar @ Shamanna

Huluvadi G. Ramesh, J.—This is a case where the petitioner has assailed the proceedings initiated against him in PCR No. 143/96 before the J.M.F.C., Davangere, for the alleged offences punishable under Sections 138 and 142 of the Negotiable Instruments Act. Here is a case wherein complaint is filed u/s 200 Cr.P.C. by the respondent against this petitioner for the dishonour of cheque of Rs. 14,000/- wherein it is stated that there was said to be an assurance to make payment within two months but later Rs. 2,000/- was paid and for the remaining amount a cheque was issued and subsequently in the usual course the petitioner is said to have presented the cheque to the bank for payment, but the bank stating that there were insufficient funds dishonoured the cheque. The respondent after having issued notice for non-payment of the amount, this complaint came to be filed and on the complaint filed, the Magistrate after recording the sworn statement took cognizance and proceeded with the cases. Thereafter, during the pendency of the matter for enquiry, this petitioner has approached this Court by way of this petition assailing the proceedings on various grounds.

Heard the learned Counsel for the respective parties.

At the outset it is the submission of the Counsel appearing for the petitioner that the xerox copy of the cheque as seen at Annexure C shows that there is no seal of the bank and also it is submitted that there is no endorsement produced to show that the cheque has been dishonoured, etc., on a particular date.

However, it is the case of the respondent that this is a bearer cheque and accordingly, he directly approached the bank and he had been told that there was insufficient funds and as such he proceeded to prosecute the petitioner after complying with the formalities.

This is a case wherein the petitioner approached this Court on two grounds viz. challenging the legality and also regarding entertaining the complaint etc. However, it is seen admittedly it is a bearer cheque and it is the contention of the complainant that he approached the bank with a cheque that came to be dishonoured stating that there were insufficient funds and accordingly, he was so informed. Thus the cheque could not be encashed. Later he issued notice to the drawer who did not perform his part of the obligation. For the said breach, complaint u/s 200 Cr.P.C. came to be filed. Regarding the endorsement for dishonour is concerned, it is a mater for evidence. It is for the petitioner to approach the Trial Court and urge his contentions on merits and also there is a burden on the part of the respondent in this regard to prove why the endorsement has not been issued, whether he has really approached the bank or not. Though it is stated that the learned Magistrate has not taken cognizance, on verifying the order sheet at I page he has mentioned about taking cognizance of the alleged offence.

Under the circumstances, the petition is disposed of. The matter is remanded back to the Trial Court with a direction to the Magistrate to proceed with the case from the stage at which it is pending.