Punjab-Haryana High Court
Nirmal Singh vs Jyoti Sarup on 8 June, 1991
Equivalent citations: [1993]77COMPCAS399(P&H)
JUDGMENT A.P. Chowdhri, J.
1. This is a petition under Section 482 of the Code of Criminal Procedure for quashing the complaint dated July 3, 1990 (annexure P-1) and the summoning order dated August 17, 1990 (annexure P-2).
2. Briefly stated, the relevant facts are that the petitioner issued a cheque dated March 16, 1990, for Rs. 1,16,643 in favour of the respondent. It was presented to the bank several times. Ultimately, the cheque was returned on May 21, 1990, with the remarks that the payment thereof had been stopped by the drawer. The respondent served the requisite notice and the petitioner having failed to make the payment within the prescribed time, the respondent filed a complaint under Section 138 of the Negotiable Instruments Act, as amended by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988. After recording preliminary evidence, the Judicial Magistrate, First Class, Amloh, summoned the petitioner for the aforesaid offence,
3. The contention of Mr. M.L. Merchea, learned counsel for the petitioner, is that one of the essential ingredients of the offence under Section 138 of the Negotiable Instruments Act is that the cheque is returned unpaid because the amount available in that account is insufficient for making the payment of the cheque. As in the facts of the case, the cheque was returned unpaid on account of the payment having been stopped, the said ingredient was missing and, therefore, it would be an abuse of the process of court to allow the proceedings to go on in the court. He relied on Abdul Samad v. Satya Narayan Mahawar [1993] 76 Comp Cas 241 (P & H).
4. Learned counsel for the respondent contended that the law in Abdul Samad's case [1993] 76 Comp Cas 241, does not apply to the facts of the present case. He submitted that the cheque in question was presented to the bank on several occasions. On March 19, 1990, the account of the petitioner showed a balance of Rs. 87,091.33 which was evidently insufficient to make the payment of the cheque for Rs. 1,16,643. On April 17, 1990, the petitioner closed the account and there was thus no question of payment of the cheque from the account of the petitioner. According to learned counsel, therefore, as a matter of fact, the cheque had not been honoured for want of necessary arrangement in the account and it was of no consequence that eventually the bank returned the cheque on the ground that the payment thereof had been stopped by the drawer. In this connection, reference was made to paragraphs 4 and 5 of the complaint as well as the statement of Parmodh Kumar, Clerk, Bank of India, examined as PW-3 in the preliminary evidence. In Paragraph 4 of the complaint, it was stated that the cheque was presented several times but the same was returned unpaid. In Paragraph 5, inter alia, it was stated that the complainant enquired about the said dishonour from the concerned bank and it was found that on May 21, 1990, there was no arrangement in the Bank of India to meet the amount of the cheque and as such the payment was stopped by the accused intentionally.
5. I have given my anxious consideration to the respective submissions of learned counsel.
6. The complainant is entitled to prove the various ingredients of the offence and the certificate of the bank as to the reason why payment of the cheque was not being made is evidently not conclusive. It is open to the complainant to show that the cheque was returned by the bank unpaid because the amount of money standing to the credit of that account was insufficient to honour the cheque. In other words, prima facie, it cannot be said that an essential ingredient of the offence being absent, there is no justification for the proceedings to go on according to law. Accordingly, there is no compelling reason for quashing the complaint and the summoning order. The petition is dismissed.
7. The parties are directed to appear in the trial court on June 14, 1991, for further proceedings according to law.