HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.2479 of 2010 O R D E R: The petitioner is accused of offence punishable under Section 138 of the Negotiable Instruments Act (in short, the Act). The 1st respondent/complainant filed complaint in the lower Court against the petitioner alleging that cheque drawn by the accused in favour of the complainant for Rs.25,00,000/- was dishonoured. The dishonoured cheque was drawn by the accused on Indian Bank, Mogalrajpuram branch, Vijayawada. The only point urged by the petitioner’s counsel in this Criminal Petition is that the cheque was not dishonoured for want of ‘sufficient funds’ in the account of the accused, but the cheque was returned by the complainant’s bank itself as it was not MICR cheque. In order to constitute an offence under Section 138 of the Act, the cheque should have been returned by the bank unpaid either because of 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. The complainant 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 was returned unpaid on 28.09.2007 with the reasons “non MICR cheque” vide cheque return memo dated 28.09.2007. Before filing the complaint, the complainant got issued notice to the accused under Section 138 Proviso (b) of the Act. It is contended by the petitioner’s counsel that the cheque was not returned or dishonoured by Indian Bank, Mogalrajpuram branch, Vijayawada as it did not reach that branch at all. The document filed along with complaint is return memo issued by State Bank of Hyderabad, Service Branch, Vijayawada to the effect that reasons for return is non MICR cheque. There is no return memo given by Indian Bank, Mogalrajpuram branch on which bank the cheque was drawn by the accused. When the complainant presented the cheque for collection through his banker State Bank of Hyderabad, APSRTC Branch, the said cheque was forwarded by that branch to Service Branch of State Bank of Hyderabad at Vijayawada and the said service branch returned the cheque as non MICR cheque, even without forwarding the same to Indian Bank, Mogalrajpuram branch for payment. In the absence of presentation of the cheque with the drawee bank namely Indian Bank, Mogalrajpuram branch, Vijayawada either by the complainant or by his banker, the offence under Section 138 of the Act is not made out in this case. In that view of the matter, continuation of the criminal proceedings in the lower Court would be wholly unnecessary. In the result, the Criminal Petition is allowed quashing proceedings in C.C.No.485 of 2009 on the file of XIX Additional Chief Metropolitan Magistrate, Hyderabad. ________________________ SAMUDRALA GOVINDARAJULU,J Dt. 29h December, 2011 PNV