1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.2356 OF 2009 Om Prakash A. Saini ...Applicant. v. Smt. Mithlesh Chaturvedi & Anr. ...Respondents. Mr.S.K.Punder, adv. For the Applicant. Mr.R.D.Suryawanshi, adv. For the Respondent No.1. Shri Y.S.Shinde, APP for the R.No.2. CORAM : J.H. BHATIA, J. DATED : AUGUST 17, 2010 P.C. 1 Heard the learned counsel for the parties. 2 Respondent no.1 filed complaint under Section 138 of the Negotiable Instruments Act against the present applicant in the Court of J.M.F.C., Thane and it was registered as C.C.No.6041 of 2007. It was contended by the complainant/respondent that she is working with a company known as Plus Company. She was interested in purchase of land at Gurgaon near Delhi and as advised by her senior manager Shri Dhanraj Sharma, she approached the accused/applicant for purchase of land. Accused told her that he had the land, which was available for sale. On that statement, the complainant paid an amount of Rs.5 lac to him. 2 After payment, the complainant requested the accused several times to execute the agreement for sale. However, he avoided. He also did not show the plot of the land, which was intended to be sold. In these circumstances, she asked the accused to refund the money and accordingly, accused issued a cheque of Rs.5 lacs in favour of the complainant on 14.7.2007 drawn on the Hissar District Central Co-operative Bank Ltd., Hisar Branch towards the discharge of liability. Cheque was presented through Union Bank of India, Bhayandar Branch. However, the cheque was returned unpaid by the Hissar District Central Co-operative Bank Ltd., Hisar Branch with endorsement 'Drawer's signature incomplete'. After that the complainant also issued notice to the accused for payment of the money. In spite of service, he failed to make the payment. Therefore, the complaint under Section 138 of the Negotiable Instruments Act was filed. The learned Magistrate issued the process against the accused. 3 This application is filed for quashing the proceess on the ground that merely because the cheque was dishonoured for want of complete signature, case under section 138 of the Negotiable Instruments Act is not made out. Section 138 provides that where any cheque drawn by a person on an account maintained by him with a banker for payment 3 of any amount of money to another person from out of that account for the discharge, in whole or inpart, of any debt or other liability, is returned by the bank unpaid, either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence punishable under Section 138 of the Negotiable Instruments Act. From this it is clear that to make the offence punishable under Section 138 of the Negotiable Instruments Act, cheque should have been dishonoured for want of insufficient funds in the account or for want of sufficient arrangement made with the bank. In the present case, cheque was not returned unpaid on any of these grounds. Cheque was dishonoured only on the ground that the signature of the drawer is incomplete. The learned counsel for the respondent/complainant contends that the accused is lawyer and he appears to have cheated the complainant by putting incomplete signature knowing that due to this reason, cheque would not be honoured. There may be substance in this contention and if it is so, the complainant can lodge F.I.R., or complaint against the accused for the offence of cheating. That will be a different subject matter. As far as facts of the present case are concerned, cheque 4 was not dishonoured for want of sufficient funds in the account or for want of sufficient arrangement with the bank for payment, therefore, case under Section 138 is not made out. As such process could not have been issued under Section 138 of the Negotiable Instruments Act. 4 In view of the above circumstances, application is allowed. The order passed by the trial Court issuing the process against the accused/applicant is hereby quashed. (J.H. BHATIA, J.)