IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. MMO No. 6 of 2009 Decided on: July 20, 2009. Jitender Kapoor …Petitioner Versus Rajinder Chauhan …Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioner : Mr. Rakesh Manta, Advocate. For the Respondent : Mr. Neeraj Gupta, Advocate. Surjit Singh, Judge (oral) Heard and gone through the record. 2. Petitioner has been summoned as an accused, in a case, under Section 138 of the Negotiable Instruments Act, instituted against him by respondent Rajind er Chauhan. Summoning order is dated 16.12.2004 and it has been passed by learned Judicial Magistrate, 1st Class, Theog. 3. Complainant alleged that he had been issued a cheque for Rs.2 lacs, on account of part payment of apple crop of his orchard, which the petitioner had purchased. Cheque was presented at Shimla Branch of ICICI Bank, with which bank the petitioner is having account, though his account is with Delhi Branch of the said Bank. It appears from the number of the cheque that the account of the petitioner is Whether reporters of the local papers may be allowed to see the judgment? …2… online and, therefore, cheque could be presented at any Branch of ICICI Bank. 4. Complainant alleged that when the cheque was presented, it was returned with memo. Annexure P-6 that the funds were not sufficient to honour the cheque. Complainant sent his son to the petitioner to bring it to his notice that the cheque had been dishonoured. The petitioner allegedly took the cheque from the son of the respondent-complainant on the pretext that he would be paying cash. Thereafter neither he paid the cash nor did he return the cheque. Notice was issued to the petitioner within the time, limited by law, calling upon him to make payment of the cheque or face prosecution, under Section 138 of the Negotiable Instruments Act. Petitioner did not respond. Respondent-complainant then filed the complaint. He produced photostat copy of the cheque. 5. The cheque is a self drawn. It is not issued in the name of the complainant. Also, it is not even a bearer cheque. Not only this, printed word ‘bearer’ has been scored out and the cheque has not been endorsed in favour of any person, leave alone the complainant. When the drawer of the cheque himself is drawee and the cheque is neither bearer nor is it endorsed to any other person, holder of such a cheque is no better than an agent of the drawer, for the purpose of collecting money from the banker. 6. Gauhati High Court in Dr. Jiten Barkakoti Vs. Subrata Patangia and another, 2005 Cri. L.J. 3598, has held that where the cheque is self drawn and it is handed over to the complainant for withdrawal of money and such a …3… cheque is neither bearer nor is it endorsed to the complainant, it is not covered by the provisions of Sections 13, 14, 15 and 16 of the Negotiable Instruments Act and hence, not a negotiable instrument. The ratio of the aforesaid judgment applies to the facts of the case, on all fours. 7. Learned counsel for the respondent has placed reliance upon a judgment of Punjab and Haryana High Court in Banarsi Dass Vs. Mohinder Kumar Patwa, 1994(1) Civil Court Cases 546. The facts of that case were different. Though the cheque was issued in favour of self, yet the name of the complainant, on the back of it, indicated that it was a bearer cheque and, hence, the complainant was its holder in due course. 8. In view of the above stated position, the present petition is allowed and the impugned order dated 16.12.2004, passed in Criminal Complaint No.247-1 of 2004, titled Rajinder Chauhan Vs. Jitender Kapoor, by the learned Judicial Magistrate, 1st Class, Theog, is set aside and the complaint is quashed. July 20, 2009 (ss) ( Surjit Singh ), J.