TMI Blog1993 (7) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner wants to have the complaint quashed under Section 482 of the Code of Criminal Procedure, 1973 (for short the Code ). 2. The complaint shows that a post-dated cheque was issued by the petitioner towards some liability or debt due to the complainant. The complainant alleges that the petitioner had closed his account with the drawee bank before the cheque was presented and hence it was returned unpaid for that reason. The petitioner's main contention is that there is no offence under Section 138 of the Act when there was no account in the drawee bank at the time the cheque was presented for encashment. According to learned counsel, the account of the drawer must be alive with the drawee bank at the time of presentation of the che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anged to be paid from that account. The latter is of no application in the case of closure of account. But it has to be considered whether the former contingency would arise when a cheque is dishonoured on the ground that the account is closed . 5. A cheque cannot be issued de hors an account maintained by its drawer with the banker. Section 6 of the Act says that a cheque is a bill of exchange drawn on a specified banker. No person can draw a cheque if he does not have an account with a banker. When the cheque is returned by the bank unpaid because of the amount of money standing to the credit of that account is insufficient to honour the cheque, it is open to the holder of the cheque to make demand for payment as indicated in Clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for Act 66 of 1988). 6. Learned counsel invited my attention to two decisions, one by a single judge of the Karnataka High Court in G.F. Hunasikattimath v. State of Karnataka [1991] 1 Crimes 226 ; [1991] 1 KLT SN 37 ; [1993] 76 Comp Cas 278 and another by a single judge of the Madras High Court in S. Prasanna v. R. Vijayalakshmi [1992] 2 KLT 417; [1993] 76 Comp Cas 522 in which the view taken is that the endorsement account closed would not fall within the ambit of Section 138 of the Act. The learned single judge of the Madras High Court has followed the decision of the Karnataka High Court in G. F. Hunasikattimath v. State of Karnataka [1993] 76 Comp Cas 278. The view of both the learned judges is that closure of account is not a gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complainant's case is that the cheque was a post-dated one. Even the petitioner admitted that the cheque was issued before the date which is shown in the cheque. Hence, the question of presumption has no significance, for, the parties practically admitted that the cheque was drawn on a previous day. Of course, the complainant has to establish on the facts of this particular case that on the date the cheque was drawn, the petitioner had a live account with the bank concerned. 9. Learned counsel lastly contended that there is want of jurisdiction for the court before which the complaint has been filed. It is for the petitioner to raise that question before the lower court and if it is raised, I am sure the lower court will decide the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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