Crl.M.C. No.2887 of 2004,Crl.M. No.9756 of 2004

17th May, 2005

Petitioner Counsel: Mr. ASHOK CHABRA , Mr. NIKHIL SINGLA
Respondent Counsel: Mr. MOHIT KUMAR

Cases Cited:
M.M.T.C. Ltd. Vs. M/s. Medchal Chemicals & Pharma P. Ltd., 2002 ALL MR (Cri) 230 (S.C.) =2002(1) JCC 15 [Para PARA3,6]
Modi Cements Ltd. Vs. Kuchil Kumar Nandi, 1998(1) JCC 96 (SC) : (1998)3 SCC 249 [Para PARA4]

JUDGMENT

-The petition seeks quashment of a complaint under Section 138 of the Negotiable Instrument Act filed by respondent No.2 against the petitioners and the order summoning the petitioners dated 30.7.2003. The petitioners Nos.2 & 3 are the partners of petitioner No.1. As per the complaint the petitioners obtained a loan from the respondent No.2 and in discharge of their liability issued three cheques bearing No.225065 dated 25.4.2003 for Rs.78,833/-, cheque bearing No.225066 dated 9.4.2003 for Rs.7,833/- and cheque bearing No.225067 dated 18.4.2003 for Rs.7,833/-, all drawn on Bank of India, Chitranjan Park, New Delhi and on presentation for payment the three cheques were returned dishonoured with the remarks "payment stopped by drawer". The complainant further alleges that a notice as prescribed under Section 138 of Negotiable Instruments Act was duly issued and the petitioners failed to pay the amount of the cheque.

2. In the present petition it is contended that no offence under Section 138 of Negotiable Instruments Act is made out as the cheques were not dishonoured on account of insufficiency of funds but on account of instructions to stop payment. It is contended that the Metropolitan Magistrate before summoning the petitioners should have obtained the record of the bank to satisfy himself about the sufficiency of the funds in the account of the petitioners. It is also pleaded that the cheques were issued without consideration.

3. The law in respect of applicability of Section 138 of Negotiable Instruments Act on account of dishonour of cheque for reason "payment stopped by drawer" has been settled by the Supreme Court in the case of M.M. T.C. Ltd. & Anr. Vs. M/s. Medchal Chemicals & Pharma P. Ltd. & Anr., 2002(1) JCC 15 : [2002 ALL MR (Cri) 230 (S.C.)]. It was held in the first place that when the complainant had pleaded that the cheque were issued in discharge of certain liability, the complaint could not be quashed by the High Court under Section 482 Cr.P.C. on the ground that the cheques had not been issued for any pre-existing debt or liability. It was also held that there was, in fact, no requirement in law for the complainant to specifically allege in the complaint that there was a subsisting liability. Following this it can be said that even when the accused pleads that the payment was stopped on account of absence of any pre- existing debt or liability, the complaint cannot be quashed and the question of fact has to be decided in defence.

4. The Supreme Court further held in this judgment that if the payment was stopped on account of a dispute in respect of absence of liability, the accused has to show that there were sufficient funds but the burden to prove the same is with the accused which the accused has to discharge at the time of leading defence evidence. Referring to its earlier decision in Modi Cements Ltd. Vs. Kuchil Kumar Nandi, 1998(1) JCC 96 (SC) : (1998)3 SCC 249, the Supreme Court made the following observations in para 19 of the judgment:

"19. Just such a contention has been negatived by this Court in the case of Modi Cements Ltd. Vs. Kuchil Kumar Nandi, (1998)3 SCC 249 (supra). It has been held that even though the cheque is dishonoured by reason of 'stop payment' instruction an offence under Section 138 could still be made out. It is held that the presumption under Section 139 is attracted in such a case also. The authority shows that even when the cheque is dishonoured by reason of stop payment instructions by virtue of Section 139 the Court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the "stop payment" instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there was sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presumption (presentation ?) of cheque for encashment, then offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused. Thus a Court cannot quash a complaint on this ground."

5. The complaint does not disclose that there were sufficient funds in the account. As per the complaint the payment was stopped which for the present is sufficient to summon the petitioners. For examining the complaint in the present petition under Section 482 Cr.P.C. this Court can only see whether the allegations in the complaint as substantiated in the pre-summoning evidence were sufficient to summon the petitioners. No inherent defect of any kind has been depicted by the petitioners.

6. The petitioners have produced a copy of the certificate from the Bank of India showing that there was sufficient funds for honouring the three cheques. However, in view of the judgment of the Supreme Court in the case of MMTC [2002 ALL MR (Cri) 230 (S.C.)] (supra), this Court cannot call for evidence to prove the certificate or to enquire as to whether there was any pre-existing debt or liability.

7. The petition under Section 482 Cr.P.C. has no strength. I am, therefore, constrained to dismiss the same. The petition is dismissed accordingly.

Petition dismissed.