New Haryana Transport Co. vs Hanutmal Jain

Radha Krishna Rao, J.—The cheque has been returned with an endorsement "Refer to Drawer". Reying upon the judgement of a learned single Judge of this Court, this Petition had been filed. That view has been not accepted by a Division Bench of this Court. The Bank for its convenience adopts certain forms indicating the reason for which it has not honoured the cheque. The term used by the bank had no relevance if it is not honoured for one reason or the other. So the charge-sheet mentions the allegations against the accused and also the procedure to issue notice within the stipulated time. It is for the Magistrate to enquiry into that case. Whether the ingredients of Section 138 of the Negotiable Instruments Act have been satisfied or not, alone had to be considered. If the accused have set up a defence and that defence requires a probe and enquiry, this Court feels that it is a matter that has to be enquired into by the Magistrate and this Court is not expected to make any enquiry u/s 482 of the Code of Criminal Procedure. The defence set up requires a deep probe to find out whether the cheque had not been honoured on account of not having sufficient finds or the funds are not arranged for. Whatever the reasons or terms the banks are using for non-paying the cashon presentation of a cheque, ultimately it is a question of fact to find out whether there was insufficiency of funds or funds were not arranged for.

I feel that no case has been made out for quashing the proceedings in C.C. No. 71/91 on the file of the V Additional Metropolitan Magistrate, Visakhapatnam. The Criminal Petition is, therefore, dismissed.