Sunday, 8 January 2017

Whether prosecution for dishonour of cheque can be initiated if withdrawal slip was not honoured?

Provisions of the Banking Regulation Act,
1949   provide   as   to   what   is   "banking",   "banking
company" etc. Learned counsel for the Applicant is
unable   to   show   that   the   Patsanstha   is   a   Bank.
Similarly   looking   to   the   definition   of   "cheque"
and   "bill   of   exchange",   the   document   Exhibit   25
cannot be said to be a cheque and the trial Court
was   right   in   its   observation   that   it   is   not   a
cheque.   Trial   Court   observed   that   as   per   R.B.I.
guidelines, Patsanstha cannot issue cheque and it
has no right to do so and the document Exhibit 25
was withdrawal slip. If Exhibit 25 is perused, on
one   side   in   fine   printing   it   is   mentioned   that
"Not   for   bank   cheak   clearing".   Apparently
Patsanstha   which   does   not   even   know   spelling   of
"cheque" has issued some document to the depositor
for its internal functioning. That will not help
the complainant.
                                       
     IN  THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.2160 OF 2014
Kiskinda Bapu Kale,

       V
Sau. Sushilabai w/o Navnath Sawant,

              CORAM:   A.I.S. CHEEMA, J.
              DATE :   26TH APRIL, 2016
Citation: 2016 (6) MHLJ287

1.    Learned counsel for the Applicant­ original
complainant   submits   that   this   Appeal   is   against

acquittal.   According   to   him   the   offence   under
Section   138   of   the   Negotiable   Instruments   Act,
1881   ("N.I.   Act"   for   short)   was   clearly
established   as   the   cheque   issued   by   the
Respondent­accused when presented, bounced and the
Respondent   should   have   been   convicted.   According
to   the   counsel,   the   reasonings   recorded   by   the
trial   Court   for   dismissal   of   the   complaint   were
not maintainable. It is stated that the document
Exhibit 25 was wrongly treated by the trial Court
as withdrawal slip and not cheque.
2. The   learned   counsel   for   the   Respondentaccused
  opposes   and   states   that   the   reasonings
recorded by the trial Court were correct and the
acquittal was justified.
3. With   the   assistance   of   counsel   for   both
sides, I have gone through the contents of Exhibit
25   which   the   complainant   wants   to   rely   on   as   a
cheque.   The   document   is   of   "Lokshradha   Nagari

Sahakari Patsanstha Ltd.". The printed wordings in
the document are as under:
N
ot for bank che
ak cle
aring
LOKSHRADHA
DATE:..........
Name................ Pay to................
Rupees..............
Rs.....
A/C. NO.
A/C TYPE
LOKSHRADHA NAGARI
SHAKARI PATSANSTHA
LTD.
HEAD OFFICE SHIVAJI
COLLAGE ROAD, BARSHI­
413411
4. Admittedly   it   was   an   account   with   the
Patsanstha. As per Section 138 of the N.I. Act, a
cheque has to be drawn by a person on an account
maintained by him with the Banker for payment of
money   to   another.   If   such   cheque   is   returned   by
the   "Bank"   unpaid,   the   Section   gets   attracted.
Definition of cheque is given in Section 6 of the
N.I. Act. In this matter, I am not concerned with

the   explanations   below   the   definition.   The
relevant part of Definition of "Cheque" reads as
follows:­
"Cheque­   A   "cheque"   is   a   bill   of   exchange
drawn on a specified banker and not expressed
to be payable otherwise than on demand and it
includes the electronic image of a truncated
cheque and a cheque in the electronic form."
. It   shows   that   cheque   is   a   bill   of
exchange.   Now   if   Section   5   of   the   N.I.   Act   is
perused, it defines "bill of exchange" as under:
"5. Bill of exchange.­ A "bill of exchange" is
an   instrument   in   writing     containing   an
unconditional   order,   signed   by   the   maker,
directing   a   certain   person   to   pay   a   certain
sum of money only to, or to the order of, a
certain   person   or   to   the   bearer   of   the
instrument.
A   promise   or   order   to   pay   is   not
"conditional",   within     the   meaning   of   this
section and section 4, by reason of the time
for payment of the amount or any installment
thereof being expressed to be on the lapse of
a   certain   period   after   the   occurrence   of   a
specified   event   which,   according   to   the
ordinary expectation of mankind, is certain to
happen, although the time of its happening may
be uncertain.
The sum payable may be "certain", within the

meaning   of   this   section   and   section   4,
although   it   includes   future   interest   or   is
payable at an indicated rate of exchange, or
is   according   to   the   course   of   exchange,   and
although   the   instrument   provides   that,   on
default   of   payment   of   an   installment,   the
balance unpaid shall become due.
The   person   to   whom   it   is   clear   that   the
direction   is   given   or   that   payment   is   to   be
made   may   be   a   "certain   person",   within   the
meaning   of   this   section   and   section   4,
although   he   is   mis­named   or   designated   by
description only."
5. Keeping   such   definitions   in   view,   one
comes across cheques which are used in the Banks
with wordings like:­
"
 State Bank of .........             
 IFSC CODE:..............
           
                  Valid for 3 months from the
                          date of instrument 
                           Date:
PAY................................................OR ORDER
RUPEES................. 
                         Rs.
A/C. NO.........................    Not Over Rs..........
          Multi city Cheque............ 
                                     ..................
                                   (Please sign above)"

6. Provisions of the Banking Regulation Act,
1949   provide   as   to   what   is   "banking",   "banking
company" etc. Learned counsel for the Applicant is
unable   to   show   that   the   Patsanstha   is   a   Bank.
Similarly   looking   to   the   definition   of   "cheque"
and   "bill   of   exchange",   the   document   Exhibit   25
cannot be said to be a cheque and the trial Court
was   right   in   its   observation   that   it   is   not   a
cheque.   Trial   Court   observed   that   as   per   R.B.I.
guidelines, Patsanstha cannot issue cheque and it
has no right to do so and the document Exhibit 25
was withdrawal slip. If Exhibit 25 is perused, on
one   side   in   fine   printing   it   is   mentioned   that
"Not   for   bank   cheak   clearing".   Apparently
Patsanstha   which   does   not   even   know   spelling   of
"cheque" has issued some document to the depositor
for its internal functioning. That will not help
the complainant.
7. This   Appeal   is   against   acquittal   and

looking   to   the   reasonings   recorded   by   the   trial
Court, it is possible view of the material which
was   brought   before   the   trial   Court.   There   is   no
reason to interfere in this Application so as to
grant leave against the acquittal or to admit the
Appeal. 
8. For   the   afore­stated   reasons,   the
Application is rejected.
                                  [A.I.S.CHEEMA, J.]

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