Karnataka High Court
G.F. Hunasikattimath vs State Of Karnataka And Ors. on 12 October, 1990
Equivalent citations: [1992]75COMPCAS266B(KAR), ILR1990KAR3881, 1990(2)KARLJ452
JUDGMENT K. Ramachandraiah, J.
1. The petitioner was the complainant and respondents Nos. 2 to 4 were accused in P. C. R. No. 88 of 1989 on the file of the Metropolitan Magistrate, IV Court, Bangalore City (for short "the Magistrate"). It arose out of a private complaint presented by the petitioner complainant under Section 200, Criminal Procedure Code, alleging that respondents Nos. 2 to 4 are liable to be punished under Section 138 of the Negotiable Instruments Act, 1881, as amended by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 (Act 66 of 1988) (for short "the Act").
2. The case of the complainant as alleged in his complaint was that respondents Nos. 2 to 4 ( hereinafter referred to as "the accused " ) issued a cheque (exhibit P-3) for Rs. 1,000 in his favour in respect of certain amount they had received under an agreement marked as exhibit P-1. When the said cheque was duly presented, it was returned by the bank with the endorsement "account closed". Therefore, the accused have committed an offence under Section 138 of the Act.
3. After hearing learned counsel for the complainant on the point of maintainability of the complaint, the learned Magistrate, by his order dated November 15, 1989, came to the conclusion that dishonouring of a cheque on the ground of "closure of his account" by the drawer of the cheque does not constitute an offence under Section 138 of the Act as the said Section contemplates dishonouring of a cheque either for want of funds or for exceeding the arrangements made. In that view of the matter, the learned Magistrate held that no sufficient material is made out by the complainant to proceed against the accused for an offence punishable under Section 138 of the Act and, consequently, dismissed the complaint under Section 203, Criminal Procedure Code. It is the said order that is sought to be quashed by the petitioner by filing this criminal petition under Section 482, Criminal Procedure Code.
4. When this petition came up for consideration before this court on August 31, 1990, Sri P. Munikrishna, appearing for the petitioner, represented that there is every likelihood of the matter being settled out of court if two weeks time is given. But, learned counsel for respondent No. 2 submitted that he has no information about the alleged settlement but he had no objection to granting two weeks' time. Therefore, the case is adjourned by two weeks. But, none appeared for the petitioner-complainant on September 21, 1990, again on October 8, 1990, and again on October 11, 1990, and today also. Therefore, Sri S. M. Hegde, learned counsel for respondents Nps. 2 to 4 accused is beard.
5. As rightly pointed out by learned counsel for the accused, Section 138 of the Act provides for punishing the drawer of a cheque which is dishonoured only under two eventualities. They are : (i) insufficiency of the amount in the account of the drawer of the cheque to honour the cheque or the amount covered by the cheque exceeding the amount arranged to be paid from that account by an agreement made with that bank and not on any other ground although there are several eventualities under which a cheque can be dishonoured and one such eventuality is the closure of the account of the drawer of the cheque in the particular bank on which he has drawn the cheque, subsequent to the issue of the cheque. It is well settled that penal provisions will have to be construed strictly and not liberally. In this connection, reliance was placed by learned counsel for the accused on a recent Division Bench decision of this court in Telecom Employees Co-operative Housing Society Ltd, v. Scheduled Castes, Scheduled Tribes Minority Communities and Backward Classes Improvement Centre , in which a Division Bench of this court presided over by the Hon'ble the Chief Justice has observed at page 3388 as under :
" (1) The court will not extend the law beyond its meaning to take care of a broader legislative purpose. -- Here 'strict' means merely that the court will refrain from exercising its creative function to apply the rule announced in the statute to situations not covered by it, even though such an extension would help to advance the manifest ulterior purpose of the statute. Here, strictness relates not to the meaning of the statute but to using the statute as a basis for judicial law making by analogy with it."
6. Construing the provisions of Section 138 of the Act in the said manner, it is not possible to accept the case of the petitioner as set out in paragraph 3(e) of the grounds raised in the petition that the learned Magistrate had failed to note that the intention of the Legislature was to punish the person who committed an offence mentioned under Section 138 of the Act by liberally construing the provisions of that Section and the view taken by the learned Magistrate is very narrow as it would defeat the very purpose of enacting Section 138 of the Act. Consequently, I hold that the petitioner has not made out a case for quashing the impugned order in exercise of the inherent power under Section 482, Criminal Procedure Code.
7. In the result, the petition is dismissed.