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In the case of Babulal Nainmal Jain v. Khimji Ratanshi Dedhia and others (1998 Cri.L.J. 4750) the cheque was returned without payment with remarks "refer to drawer" but from the averments in the complaint it was noticed that the cheque in question was defective and was not in its proper form as expected. It was not in the from of M.I.C.R.(Not computerised form, according to counsel) and the Bank had asked them to replace it and the petitioner had refused to replace it. It was contended that the cheque was returned on account of the said defect and not due to any insufficiency of funds in the credit of the drawer of the cheque and this Court held that since the cheque was returned not because of any reasons attributable to the defrauding of the creditor or to the lack of credit, etc., it was illegal on the part of the Magistrate to issue summons on the assumption that prima facie case was disclosed against the petitioner under Section 138 of the Act. The Court further observed that if a cheque is returned on account of any structural defect i.e. any defect in its form, want of signature, date has not been properly written, figure of the amount has been overwritten or erasures in the drawer's name, etc., the same will not amount to an offence punishable under Section 138 of the Act. The Court further observed that from the complaint it was clear that the only fault committed by the petitioner was that he had refused to replace the cheque and nothing was spelt out in the complaint about the insufficiency of funds. This Court, therefore, proceeded to quash the process issued against the petitioner.

15. As already stated, the accused has disputed not only his signature on the cheque but even the very issuance thereof or for that matter that there was any liability towards settlement of dues of hire charges. The statement made on behalf of the accused in para 4 of the reply dated 19.7.04 cannot be read as if to say that it is in admission that the accused had an account in UCO Bank, Hubli prior to 8 - 10 years . This was a case where the cheque was returned dishonoured mainly because the account could not be located for want of account number or in other words because it had apparent basic structural defect and not because the account was closed or there was insufficient funds in the account. In my view, such an endorsement will not amount to saying that the account was closed. It is rather surprising that the said cheque allegedly issued by the accused did not have the account number of the account of the accused held by him in UCO Bank, Hubli. In the absence of the account number and the stand taken by the accused in the reply it would be difficult even to come to a prima facie conclusion that the cheque was issued by the accused. In the light of that, the order of the learned Sessions Judge could not be faulted.