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10. CW2 was cross examined on behalf of the accused. CW2 has admitted that the drawer bank Oriental Bank of Commerce was merged into Punjab National Bank on 01.04.2021. He has also admitted that the cheque book of Oriental Bank of Commerce has become invalid after 01.04.2021. CW2 has deposed that when the bank is merged with another bank and cheque got invalid, then the invalid cheque does not come under bounce cheque. He voluntarily stated that the bank does not accept the invalid cheque. CW2 has admitted that the cheque in question was presented by the complainant on 29.12.2021 after merge of Oriental Bank of Commerce into Punjab National Bank.

19. As per the undersigned, the provision as contained in section 138 of the NI Act makes it clear that it is not every return of a cheque return unpaid which leads to prosecution of an offence under the said provision of law. For such purposes, the cheque must have been returned 'unpaid' either because the amount of money standing to the credit of that account is insufficient to honor the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank. In the instant case, the impugned cheque has been returned dishonored on the ground that it is an 'old OBC cheque'. Perusal of record shows that the complainant has called the bank witness to prove that not only the cheque was returned being old but also on the date of the cheque the accused was not having sufficient balance in his account or cheque got dishonoured due to the other reasons like "exceed the arrangement" or "signature differ" or "account closed" etc but even after examining the CW2, complainant could not discharge his burden as despite the account statement being furnished CC NO. 235/2022 JRP vs Surender page 9 of 16 SNEHIL by SNEHIL SHARMA Date: 2024.05.27 16:55:38 +0530 by CW2, the bank witness stands firm on the statement that the bank does not accept invalid cheque after 01.04.2021 and the cheque in question was invalid cheque and not come under bounced cheque. Also, date on the cheque is beyond the said date and also the account statements shows that there are continued transactions in the account of the accused and that too through other cheques. Therefore, the accused has successfully raised the doubt that the cheque in question was the security cheque misused by the complainant.

21. Further, the contention that the accused deliberately issued the impugned cheque knowing that the same shall not be honored upon presentation also does not hold water in the eyes of law. Because offence under Section 138 of the NI Act is a technical offence and if the cheques itself are not a valid instrument and the reason for dishonor is not covered under the said section, then without prejudice to the other remedies that the CC NO. 235/2022 JRP vs Surender page 10 of 16 SNEHIL by SNEHIL SHARMA Date: 2024.05.27 16:55:45 +0530 complainant may have against the accused under the Indian Penal Code or Civil or Recovery or other laws for the time being in force, no offence of dishonor of the cheques can be made out against the drawer under the NI Act. This old cheque being seized legal tender is not less than demonitisation of the old cheque and therefore does not have any value after the expiry of seizing date. In this case, a cheque which has been returned due to being old OBC cheque is nothing less than a printed paper which does not have any value for the bank and has been declared invalid by RBI being old cheque. Complainant cannot take the plea that he was unaware about the said ruling while accepting the cheque as the ignorance of law is no excuse. Therefore, it cannot be said that essential ingredients

31. Hence, doubt is raised upon the story deposed by the complainant. The contradictions and omissions in the evidence of complainant could be removed by bringing witness or any audio/video recording or any documentary evidence or any chating or by showing the transfer from the bank or by disclosing the same in evidence etc. As per the above discussion, it can not be said that the cheque was drawn by him in favour of the complainant as the same was an old OBC cheque which has been deemed invalid since 01.04.2021. Therefore, the essential ingredient (iii) as discussed in the preceding paragraphs does not stand fulfilled.