ORDER P.K. Jain, J.
1. Heard Sri Anil Kumar Srivastava, learned counsel for the petitioner and Sri Pankaj Naqvi, learned counsel for respondent No. 2 as also the learned A.G.A. representating respondent No. 1.
2. The respondent No. 2 had filed a complaint against the petitioner which is Annexure I to the writ petition. The allegations in the complaint were that the complainant had advanced a loan of Rs. 50,000/- to the accused (petitioner) which was not returned by the accused, on making repeated demands the accused issued an Account payee cheque dated 23-1 -1995. The complainant deposited the cheque with Canara Bank, Civil Lines, Bareilly for realisation of the amount and for crediting the same in the complainant's Savings Bank Account No. 7196. The accused, however, directed the hank to stop the payment. The complainant approached the accused and enquired from her about the reason for stopping the payment and he was told that the cheque was not being issued for payment of the money but it was issued only to satisfy him. The complainant thereafter served a notice as required by Section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act). The accused did not pay the money even after expiry of the period of notice. The accused thus, committed offence under Section 138 of the Act.
3. The learned Magistrate after recording the statements under Section 200, Cr.P.C. and 202, Cr.P.C. and perusing the material on record summoned the accused under Section 138 of the Act. The accused filed objection against summoning order mainly on the ground that the allegations continued, in the complaint did not make out offence under Section 138 of the Act. The learned Magistrate rejected the objection of the accused. Thereafter a Criminal revision was filed which was dismissed by the learned Addl. Sessions Judge by his judgment and order dated 16-10-1995.
4. By the present petition, the petitioner prays for quashing of the orders dated 4-4-1995 summoning the accused, dated 29-7-1995 rejecting of objection by the learned Magistrate and dated 16-10-1995 dismissal of the revision by the learned Addl. Sessions Judge on the ground that no offence is made out from the allegations contained in the complaint.
5. The main contention of the learned counsel for the petitioner is that under Section 138 of the Act offence is committed only when the cheque is bounced or returned by the bank unpaid either because of the amount of money standing to the credit of the account of the person issuing the cheque is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account. It is contended that in the instant case there is no allegation in the complaint that the amount in the account of the petitioner was insufficient to honour the cheque or that the cheque exceeds the amount arranged to be paid from that account of the petitioner. Therefore, no offence under Section 138 of the Act was committed. In support of his contention the learned counsel for the petitioner has relied upon a number of decisions of this Court and some other High Courts. There- are, however, two recent decisions of the Hon'ble Supreme Court which have settled the controversy.
6. The first decision is reported in AIR 1996 SC 2339 Electronics Trade & Technology Development Corporation Limited, Secunderabad v. Indian Technologists & Engineers (Electronics) Pvt. Ltd. In this case the allegations in the complaint were that the accused issued cheque with the promise that the same will be honoured when presented. It was, however, dishonoured with the endorsement "I referred to drawer, 2 instructions for stopping payment and 3-stamped exceeds arrangements." It was evident from the memo of the bank that the said cheque was dishonoured by the bank for want of funds only. It was also alleged in the compalint that the accused with dishonest intention instructed the bank to slop payment and such instruction was given since he had no sufficient funds in his bank account. The Hon'ble Supreme Court considered the question whether dishonouring of the cheque on the ground that instructions for stopping payment were given by the accused would bring such act within the mischief of Section 138 of the Act. The Supreme Court while considering such a question ruled as follows (para 7):-
Sri Nageswara Rao, learned counsel appearing for the respondents, contended that stoppage of payment due to instructions does not amount to an offence under Section 138 and that, therefore, the ingredients in Section 138 have not been satisfied. We find no force in the contention. The object of brining Section 138 on statue appears to be to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. Despite civil remedy, Section 138 intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a bank and induces the payee or holder in due course to act upon it. Section 138 draws presumption that one commits the offence if he issues the cheque dishonestly. It is seen that once the cheque has been drawn and issued to the payee and the payee has presented the cheque and thereafter, if any instructions are issued to the bank for non payment and the cheque is returned to the payee with such an endorsement, it amounts dishonour of cheque and it conies within the meaning of Section 138. Suppose after the cheque is issued to the payee or to the holder in due course and before it is presented for encashment, notice is issued to him not to present the same for encashment and yet the payee or holder in due course presents the cheque to the Bank for payment and when it is returned on instructions, Section 138 docs not get attracted.
7. This decision of the Supreme Court was considered in another decision reported in 1997 All India Judicial Interpretation on Crimes 386 K.K. Sidharthan v. T.P. Praveena Chandran. That was a ease in which the accused had issued two post-dated cheques dated 10-10-1994 and 31-12-1994, each for a sum of Rs. 3,00,000/- drawn on Indian Overseas Bank, Trichur Branch. But on cheque being presented, the same were returned unpaid on 15-10-1994 with the enforcement" payment countermanded by the drawer." The complainant further alleged that the cheques were returned unpaid for want of sufficient funds in the account. The accused were summoned on these allegations. The High Court refused to quash the complaint. Thereafter appeal was filed before the Supreme Court. In para 3 of the judgment the case of Eletronics Trade and Techonology Development Corporation Ltd. v. Indian Technologists and Engineers (Electronics) Pvt. Ltd. AIR 1996 SC 2339 (supra) was considered. However, on the facts of that case the Court had found that prior to presentation of the cheques notice was served by the complainant on 4th Oct. 1994 which had been replied by the counsel for the accused on 12lh Oct. 1994 whereby information was given to the complainant that instructions for stopping payment were issued by the accused and still the accused presented the cheques for being honoured. It was held that in these circumstances, the act of the accused in instructing the bank to stop the payment and informing the complainant well in lime would not bring within the mischief of Section 138 of the Act. If the complainant presents the cheque after receipt of such information about instruction to the bank of slopping payment. The Hon'ble Supreme Court did not dissent from its earlier decision reported in AIR 1996 SC 2339 Electronics Trade & Technology Development Corporation Ltd., Secunderabad v. Indian Technologists and Engineers (Electronics) Pvt. Ltd.
8. In the present case there is specific allegation in the complaint that the cheque was presented by the complainant to his Bank for collection of the amount on the day when it was issued and the accused issued instructions to its' bank for stopping the payment. When complainant approached the accused, the accused had specifically told to the complainant that the cheque was not issued for being dischonoured by the bank, it was issued only for satisfying the complaint for the lime being. Thus there was prima facie dishonest intention on the part of the petitioner and in view of the observations of the Supreme Court in M/s. Electronics Trade & Techonology Development Corporation's case the act of the accused will be covered by the mischief of Section 138 of the Act. The Supreme Court has observed that it is seen that once the cheque has been drawn and issued to the payee and the payee has presented the cheque and thereafter if any instructions are issued to the Bank for non-payment and the cheque is returned to the payee with such an endorsement, it amounts dishonour of cheque and it comes within the meaning of Section 138.
9. In view of the foregoing discussions, there is no merit in the present petition. The petition is hereby dismissed. The Stay order dated 14-11-1996 shall stand vacated.