1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Shri Bhikam Chand Vs. Namit Sharma S.B.CR. LEAVE TO APPEAL NO.251/2006 DATE OF ORDER :: July 26, 2007 PRESENT HON'BLE MR.JUSTICE H.R.PANWAR Mr.J.P.Bhardwaj, for the appellant. BY THE COURT: This criminal leave to appeal under section 378(4) Cr.P.C. has been filed by the complainant-appellant challenging the judgment and order dt. 27.5.2006 passed by the Judicial Magistrate, Marwar Junction, Distt. Pali (for short `the trial court' hereinafter) in Cr. Complaint Case No.107/2004, whereby the trial court acquitted the accused-respondent for the offence under section 138 of the Negotiable Instruments Act, 1881 (for short `the Act' hereinafter). 2 I have heard learned counsel for the appellant. Carefully gone through the judgment and order impugned as also the record of the trial court. The case of the appellant-complainant is that he is trading in finance in the name and style “Bhagya Laxmi Enterprises” at Ranawat, Distt. Pali. There had been a business dealing between appellant and the respondent. The respondent gave a cheque of Account No.043231, Bank of Rajasthan, Branch Bedla, Udaipur. On the cheque being presented to the Bank, it was not honoured on the ground that the signature on the cheque of the account holder does not tally. The account holder undisputedly is one Lokendra Singh and the cheque was not signed by him. Even according to the appellant, it was signed by respondent Namit Sharma. The dishonour of cheque was not on the ground that the account holder does not have the sufficient amount in his account to honour the cheque but it was dishonoured on the ground that the cheque was signed by a person other than the account holder. Section 138 of the Act provides that where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, 3 of any debt or other liability, is 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, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both. In the instant case, the cheque in question issued by the respondent was not of an account maintained by the respondent with the banker but it was of an account maintained by Lokendra Singh and thus very essential ingredients of section 138 of the Act are not made out. Even otherwise, the cheque has not been dishonoured or returned unpaid on account of insufficient amount to the credit of that account to honour the cheque or that it exceeds the amount arranged to be paid from that account. On these premises, the trial court dismissed the complaint filed by the petitioner. The trial court held that if at all any offence is made out, then the offence of cheating punishable under section 420 I.P.C. against the respondent for which no complaint has been filed by the petitioner. Even otherwise, the cheque stands in the name of firm Bhagya Laxmi Enterprises 4 and the complaint has been filed in the individual capacity without impleading the firm. Be that as it may, since the very essential ingredients of section 138 of the Act are not made out, in my view, the trial court was justified in dismissing the complaint and acquitting the accused-respondent. In the circumstances, therefore, I do not find any good ground to grant leave to appeal to this Court. The application seeking leave to appeal to this Court is, therefore, dismissed. [H.R.PANWAR],J. m.asif/-