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TMI Blog2023 (7) TMI 1169X X X X Extracts X X X X X X X X Extracts X X X X ..... f present petition, the aforesaid complaint as well as summoning order has been impugned on the ground that from the perusal of cheque in question and contents of complaint, no offence under Section 138 of 1881 Act has been made out against the petitioner. 4. Learned counsel for the petitioner submits that the cheque in question is dated 18.07.2017, which was presented for the first time on 11.09.2017 and dishonoured on the same date for the reason "other reason-Bank is merged". The same was again presented on 18.10.2017, but was again returned with remarks "other reason-bank is merged". Thereafter, a demand notice dated 26.10.2017 was issued under registered A.D. post on 30.10.2017 by the respondent, followed by filing of complaint and the summoning order dated 07.12.2017. 5. In the aforesaid facts and circumstances, learned counsel for the petitioner submits that once the cheque in question was dishonoured at the first instance on 11.09.2017 for the reason "other reason-bank is merged", there was no occasion for the respondent-complainant to have presented the same again as there was no probability of its encashment on account of bank having merged way-back in the year 2005. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution based on the first default which was followed by a statutory notice and a failure to pay had not been launched. If the entire purpose underlying Section 138 of the Negotiable Instruments Act is to compel the drawers to honour their commitments made in the course of their business or other affairs, there is no reason why a person who has issued a cheque which is dishonoured and who fails to make payment despite statutory notice served upon him should be immune to prosecution simply because the holder of the cheque has not rushed to the court with a complaint based on such default or simply because the drawer has made the holder defer prosecution promising to make arrangements for funds or for any other similar reason. There is in our opinion no real or qualitative difference between a case where default is committed and prosecution immediately launched and another where the prosecution is deferred till the cheque presented again gets dishonoured for the second or successive time." 9. At this stage it is necessitated to have a look at the proviso to Section 138 of the Act, which is reproduced hereunder:- "138. Dishonour of cheque for insufficiency, etc., of funds in the acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eque was returned for the reason "account closed". Once account is closed, there is no question of re-opening the account to facilitate payment in the same account. It is quite obvious that the respondent having failed to issue a statutory notice within stipulated period after the first return, again presented the cheque to save the limitation. This Court finds that this case is barred by limitation and cannot be maintained." 11. However, in my considered opinion, reliance placed on this judgment is misconceived on two counts. Firstly, it is required to be noticed that in paras 4 and 5 of the complaint, the respondent-complainant has mentioned that the cheque was presented again on an assurance given by the petitioner, while this was not the case in Vanitha's case (supra) and additionally this scenario is specifically covered by the reasoning given in MSR's case (supra). Secondly, in Vanitha's case (supra), Division Bench was exercising revisional jurisdiction after trial has completed and thus was having the benefit of observing and examining all the aspects of the case, while in the present case the trial is at very initial stage only and this Court does not have the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decisions referred to above taken note of situations and contingencies arising out of deliberate acts of omission or commission on the part of the drawers of the cheques which would inevitably result in the dishonour of the cheque issued by them. For instance this Court has held that if after issue of the cheque the drawer closes the account it must be presumed that the amount in the account was nil hence insufficient to meet the demand of the cheque. A similar result can be brought about by the drawer changing his specimen signature given to the bank or in the case of a company by the company changing the mandate of those authorised to sign the cheques on its behalf. Such changes or alteration in the mandate may be dishonest or fraudulent and that would inevitably result in dishonour of all cheques signed by the previously authorised signatories. There is in our view no qualitative difference between a situation where the dishonour takes place on account of the substitution by a new set of authorised signatories resulting in the dishonour of the cheques already issued and another situation in which the drawer of the cheque changes his own signatures or closes the account or issu ..... 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