Punjab-Haryana High Court
Rita Khanna vs R.S. Traders And Anr. on 1 October, 1992
Equivalent citations: [1996]85COMPCAS446(P&H), (1993)104PLR113
JUDGMENT J.B. Garg, J.
1. Rita Khanna, wife of Shri Raman Khanna, has moved the present petition under Section 482 of the Code of Criminal Procedure, 1973, challenging the summoning order dated May 13, 1992, passed by the Judicial Magistrate I Class, Amritsar, for the alleged offence under Section 138 of the Negotiable Instruments Act, 1881.
2. Briefly, the facts as alleged are that R. S. Traders supplied the yarn to Super Textiles, Golden Temple Road, Amritsar, on November 9, 1990, and a cheque for Rs. 10,000 was drawn by Smt. Rita Khanna, dated June 6, 1991, on Canara Bank, Amritsar. The aforesaid cheque was dishonoured with the remarks "funds insufficient" on June 7, 1991, June 8, 1991, and June 21, 1991, and, thereafter, on December 3, 1991. It was, thereafter, that the complainant served a notice under Section 138 of the Negotiable Instruments Act on December 16, 1991, and, thereafter, instituted the complaint. After recording the evidence of a clerk of the Canara Bank and the complainant the trial court issued the impugned summoning order.
3. The plea of the accused had been that the sale of yarn took place on November 9, 1990, and a cheque dated June 6, 1991, for Rs. 10,000 drawn on the Canara Bank, Amritsar, was issued towards part payment. When this cheque was dishonoured on June 7, 1991, June 8, 1991, and June 21, 1991, the complainant approached the accused and another cheque of Rs. 8,000 dated August 20, 1991, from the sister concern of the firm, namely, Raman Woollen and Silk Mills, was given to the complainant and it was actually encashed. It has further been averred that the petitioner subsequently paid cash sums at two occasions and its own suit for recovery of excess payments, is pending in the Court of Sub-Judge I Class, Amritsar, where the last date fixed was September 15, 1992.
4. In para No. 1 of the notice (annexure P-2), there is a specific mention that the goods were purchased against bill No. 19, dated November 9, 1990, worth Rs. 12,080 and in token thereof the purchaser issued a cheque bearing No. 4590191, dated June 6, 1991, for Rs. 10,000 drawn on the Canara Bank, Amritsar, leaving a balance of Rs. 2,080. It was admittedly a post-dated cheque. Once it was dishonoured on June 7, 1991, or even on June 8, 1991, the complainant was not expected to slumber over it and to invoke the provision of Section 138 of the Negotiable Instruments Act for serving a notice on December 16, 1991, after its another alleged dishonouring on December 3, 1991.
5. Learned counsel for the petitioner has referred to N. C. Kumaresan v. Ameerappa [1992] 74 Comp Cas 848 (Ker) ; [1991] ISJ (Banking) 459, wherein, it was observed that the Legislature did not have the intention to subject a drawer of cheque to repeated prosecutions and convictions on the strength of one cheque. In other words, it may be clarified that creditor is expected to invoke the provision of Section 138 of the Negotiable Instruments Act immediately if it has the intention to avail of this penal remedy.
6. In the circumstances of the case, the conclusion is that this petition under Section 482 of the Code of Criminal Procedure, succeeds and the complaint dated January 4, 1992 (annexure P-1), instituted against the accused at Amritsar, is hereby quashed.