CRLP/2479/2010 of M. Uaday Bhasker Rao Vs K. Seetharamaiah on 29 December 2011

O R D E R:

The petitioner is accused of offence punishable underSection 138 of the Negotiable Instruments Act (in short, theAct). The 1[st] respondent/complainant filed complaint in thelower Court against the petitioner alleging that cheque drawn bythe accused in favour of the complainant for Rs.25,00,000/-was dishonoured. The dishonoured cheque was drawn by theaccused on Indian Bank, Mogalrajpuram branch, Vijayawada. The only point urged by the petitioner’s counsel in this CriminalPetition is that the cheque was not dishonoured for want of‘sufficient funds’ in the account of the accused, but the chequewas returned by the complainant’s bank itself as it was notMICR cheque. In order to constitute an offence under Section138 of the Act, the cheque should have been returned by thebank unpaid either because of the amount of money standingto the credit of that account is insufficient to honour the chequeor that it exceeds the amount arranged to be paid from thataccount by an agreement made with that bank. Thecomplainant presented the cheque through his S.B.Account with State Bank of Hyderabad, APSRTC Branch, Hyderabad. The allegations in the complaint read that the same wasreturned unpaid on 28.09.2007 with the reasons “non MICRcheque” vide cheque return memo dated 28.09.2007. Beforefiling the complaint, the complainant got issued notice to theaccused under Section 138 Proviso (b) of the Act. It iscontended by the petitioner’s counsel that the cheque was notreturned or dishonoured by Indian Bank, Mogalrajpurambranch, Vijayawada as it did not reach that branch at all. Thedocument filed along with complaint is return memo issued byState Bank of Hyderabad, Service Branch, Vijayawada to theeffect that reasons for return is non MICR cheque. There is noreturn memo given by Indian Bank, Mogalrajpuram branch onwhich bank the cheque was drawn by the accused. When thecomplainant presented the cheque for collection through hisbanker State Bank of Hyderabad, APSRTC Branch, the saidcheque was forwarded by that branch to Service Branch ofState Bank of Hyderabad at Vijayawada and the said servicebranch returned the cheque as non MICR cheque, even withoutforwarding the same to Indian Bank, Mogalrajpuram branch forpayment. In the absence of presentation of the cheque with thedrawee bank namely Indian Bank, Mogalrajpuram branch, Vijayawada either by the complainant or by his banker, theoffence under Section 138 of the Act is not made out in thiscase. In that view of the matter, continuation of the criminalproceedings in the lower Court would be wholly unnecessary.

In the result, the Criminal Petition is allowed quashingproceedings in C.C.No.485 of 2009 on the file of XIX AdditionalChief Metropolitan Magistrate, Hyderabad.

Dt. 29[h] December, 2011PNV

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SAMUDRALA GOVINDARAJULU,J