"In the Absence of Cheque Issued on Accused's Account, Section 138 NI Act Not Attracted: Himachal Pradesh High Court Acquits Accused"

In a significant judgment, the Himachal Pradesh High Court has held that for an offence under Section 138 of the Negotiable Instruments Act (NI Act) to be sustained, it is imperative that the cheque in question must be drawn on an account maintained by the accused. If this primary requirement is not met, the provisions of Section 138 cannot be invoked.

The case involved a cheque issued by the accused, which was dishonored due to insufficient funds. The complainant had alleged that this act constituted an offence under Section 138 of the NI Act. However, the defense claimed that the cheque was not drawn on an account maintained by the accused, which is a prerequisite for the applicability of Section 138.

Justice Rakesh Kainthla meticulously analyzed the evidence, particularly the testimony of Mansa Ram (CW3) and the details of the cheque and the account it was drawn on. The Court observed that the cheque was indeed not drawn on an account maintained by the accused but by a different individual, Ashu Dhiman. This finding was pivotal in the Court's decision, as the first and foremost requirement for an offence under Section 138 of the NI Act is that the accused must have drawn the cheque from his account.

Justice Kainthla referenced the Supreme Court's ruling in Malkeet Singh Gill v. State of Chhattisgarh, emphasizing the limited scope of interference in criminal revision and the importance of satisfying the necessary ingredients of the alleged offence. The Court noted, "The cheque should have been drawn on an account maintained by the accused. If the cheque is drawn not on the account maintained by the accused but by some other person, the same will not attract the provisions of Section 138 of the NI Act."

Consequently, the Court allowed the revision, setting aside the judgments of the lower courts. The accused was acquitted of the charges under Section 138 of the NI Act as the primary condition of the cheque being drawn on the accused's account was not fulfilled.

Date of Decision: 07-03-2024.

Ashok Kumar Vs. Parveen Kumar and Another,