IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL MISCELLANEOUS APPLICATION No. 822/2008 (Under Section 482 of the CrPC) Tanveer Ahmed …….Applicant Versus Smt. Rajni Pundir ……Respondent Mr. Mohd. Safdar, Advocate, for the applicant. Mr. Tapan Singh, Advocate, holding brief of Mr. Lok Pal Singh, Advocate, for the respondent. 21st December, 2011 Hon’ble Servesh Kumar Gupta, J. By way of this Criminal Miscellaneous Application, the applicant has prayed for quashing of the order of cognizance dated 27.11.2008 as well as the entire proceedings of Complaint Case No. 1783/2008, Smt. Rajni v. Tanveer Ahmad, under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the ‘Act’). The said case is pending in the court of Judicial Magistrate, Roorkee, District Haridwar. 2. In brief, the facts are that on 15.9.2008, the applicant Tanveer Ahmed issued a cheque no. “015997”, drawn on Central Bank of India, Roorkee to Smt. Rajni Pundir (respondent) for payment of ` 2,20,000/-. When the cheque was presented for encashment, it was dishonoured by the bank on 15.9.2008 itself with the remark “referred to drawer”. So, Smt. Rajni Pundir issued a notice on 26.9.2008 to Tanveer Ahmed as envisaged under Section 138(b) of the Act. When it could not yield any result, then she filed a complaint on 10.11.2008 against Tanveer Ahmed, whereupon the impugned order of cognizance has been passed by the learned Magistrate. 2 3. Learned Counsel for the applicant has relied upon a precedent passed by this Court in Criminal Miscellaneous Application No. 560/2007, Sahjad Ahmad v. State of Uttarakhand & Another on 26.8.2011, wherein the scope of launching prosecution under Section 138 of the Act has been discussed. As is envisaged under Section 138 of the Act, such a complaint can be filed in the case where the bank has dishonoured the cheque for the reason of insufficiency of fund. Hon’ble Apex Court has also enhanced the scope of this offence for two more reasons and those are, (a) closure of account by the drawer after issuing the cheque, and (b) if the drawer issues the instructions to the bank for stopping of payment of the cheque. The cause/endorsement “referred to drawer” is not covered by any of the aforesaid three reasons. 4. Learned Counsel for the respondent has drawn attention of this Court towards the presumption contained under Section 118 118(a) of the Act, which reads as under: “118. Presumptions as to negotiable instruments.—Until the contrary is proved, the following presumptions shall be made:-- (a) of consideration—that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; 5. Undoubtedly, the presumption goes against the applicant and it will be presumed that the cheque, in question, was a negotiable instrument and was drawn for 3 some consideration. But the fact remains that the cheque was dishonourned by the bank not for the reasons as are envisaged under Section 138 of the Act, but simply with the remark “referred to drawer”, and in such an eventuality, offence of Section 138 of the Act is not attracted. 6. For the reasons recorded above, the petition is allowed. Impugned order of cognizance dated 27.11.2008 as well as the entire proceedings of Complaint Case No. 1783/2008, Smt. Rajni v. Tanveer Ahmad, under Section 138 of the Act, pending in the court of Judicial Magistrate, Roorkee, District Haridwar, are hereby quashed. However, it is observed that the payee is not remediless because there is well established principle of criminal jurisprudence “ubi jus ibi remedium”, meaning thereby that where there is a wrong, there is a remedy. So, in the present eventuality, the scope left for Smt. Rajni Pundir is to look for other remedies available under the statute. 7. Registry is directed to inform the court concerned accordingly. (Servesh Kumar Gupta, J.) 21.12.2011 Prabodh