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Showing contexts for: Structural defects in Shri Babulal Nainmal Jain vs Shri Khimji Ratansha Dedhia & Others on 24 August, 1998Matching Fragments
However, the complainant society presented the said cheque through Dena Bank and asked to give any endorsement, hence, the said Bank sent the said cheque for clearance to Dombivali Nagri Sahakari Bank Ltd., Dombivali. Dena Bank sent a letter to me stating that your cheque which was presented to our Bank was dishonoured with the remark "refer to drawer".
2. From the above pleadings it is clear that the cheque in question was defective. It was not in its proper form as expected. It was not in the form of M.I.C.R. (Not computerised form, according to Counsel). The Bank asked them to replace it and the petitioner refused to replace it. According to Mr. Mundargi, the cheque is returned only on account of the said defect and not due to any insufficiency of fund in the credit of the drawer of the cheque. I find considerable force in that contention when the complaint discloses that the cheque was returned not because of any reasons attributable to the defrauding of the creditor or to the lack of credit etc. it is illegal on the part of the Magistrate to issue summons in the assumption that prima facie case has been disclosed against the petitioner under section 138 of the Negotiable Instruments Act. As pointed out earlier, it is only a defect in drawing the cheque. 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 over written or erasures in the drawer's name etc. the same will not amount to an offence punishable under section 138 of the Negotiable Instruments Act. It is clear from the complaint that only fault committed by the petitioner is that he has refused to replace the cheque. Nothing was spelt out in the complaint about the insufficiency of fund. In view of this, I find that the learned Magistrate has not properly applied its mind before issuing summons against the appellant. The complaint is therefore, liable to be quashed as it is sheer abuse of the jurisdiction of the Court.