ORDER R.N. Ray, J.
1. This application under Section 482, Cr.P.C. has been preferred by Smt. Vandana Jain, Director Srishti Carriers Pvt. Ltd., New Delhi. This application has been filed praying for quashing further proceedings in case No. 3169/95 - Shyamdhar Dwivedi v. Smt. Vandana Jain, under Section 138 of the Negotiable Instruments Act and Section 420 I.P.C. pending before the learned C.J.M., Varanasi in case No. 3169/96-Shyamdhar Dwivedi v. Smt. Vandana Jain and they have also prayed for stay the arrest of the applicant till the final disposal of the case. Affidavits have been exchanged.
2. It has been contended by the learned counsel for the applicant that on 17-5-1995 an agreement was entered into between M/s. Srishti Carriers Pvt. Ltd. (the Principal) of which the petitioner is a Director and respondent No. 2 (the agent), under the terms of the agreement aforesaid the Agent was required to arrange finances for the Principal in the shape of fully convertable debentures (F.C.D.'s). The terms of the F.C.D's was 180 days after which the Principal had to redeem the said F.C.D's for a total value of Rs. 1 crore payable to the agent on 18-11-1995. This amount of Rs. 1 crore was doubly secured by the Principal. A photo copy or agreement aforesaid is hereby marked as annexure '1' to this application and on the said agreement 81000 shares were delivered to the respondent No. 2 in order to secure the respondent No. 2 for the money paid to M/s. Srishti Carriers (Pvt.) The petitioner had also sent share transfer stamps of Rs. 25,000/- to the respondent No. 2 to be fixed in the event the securities required (sic) transfered in the name of respondent No. 2 in case of default on the part of the petitioner. The total value of the said share certificates was more than Rs. 1 crore. The petitioner had also issued a post-dated cheque dated 18-11-1995 the sum of Rs. 1.00 crores in favour of respondent No. 2 (the agent) drawn on State Bank of India Bhinji Cama Place, New Delhi. Respondent No. 2 by its facsimile/ registered mail dated 12-11-1995 desired that the post dated cheque for the sum of Rs. 1.00 crore lying with them be replaced by a Demand Draft for the equal amount, that copy is marked herewith as Anenxure '2'. Thereafter further negotiations took place between the parties and the company Srishti Carriers petitioner made a proposal vide its letter dated 27-11 -1995 which was sent via fax to pay a sum of Rs. 20-25 lacs by November 30, 1995, Annexure '3' here to is the copy of the said letter. Respondent No. 2 immediately on the next day vide its fax dated 28-11-1995 requested the petitioner to send a demand draft for Rs. 25 lacs. Annexure '4' hereto is the copy of the said letter. It was agreed that on the payment of Rs. 25 lacs at that stage cheque of Rs. 1 crore which was lying with the respondent No. 2 would not be deposited the same and that was to be returned to the petitioner pursuant to this the petitioner sent a bankers cheque bearing No. 874765 dated 30-11 -1995 the sum of Rs. 20,00,000/- to the respondent No. 2 towards the part payment of the dues. Annexure '5' is the copy of the petitioner's letter along with the cheque and the said cheque was duly encashed by the Banaras Beads (P) Ltd. Thereafter the petitioner sent another cheque dated 9-1-1996 for the sum of Rs. 5,00,000/- to the respondent No. 2 drawn on the State Bank of India, Bhikaji Cama Place, New Delhi towards repayment of the money invested by the respondent No. 3 on behalf of the petitioner in the F.C.D's of Srishti Vide Corp. Ltd. and the said cheque was also duly encashed. Annexure '6' hereto is the copy of the said letter sent along with the cheque. That the respondent No. 2 by its fax dated 23-1-1996 acknowledged the receipt of remittance of Rs. 5.00 lacs and requested for further remittance. Annexure '7' hereto is the copy of the said letter. This letter itself makes it abundantly clear that it was agreed upon in between the parties that the cheque of Rs. 1 crore dated 18-11-1995 was not to be deposited by the respondent No. 2 and the petitioner was liquidating the dues to respondent No. 2 by issuing fresh cheques from time to time. That the petitioner in pursuant to the said fax dated 23-1 -1996 informed the respondent No. 3 that in spite of promise to pay the dues in phased manner, on account of severe liquidity in the money market, they were finding it difficult to make the payment and wanted some time more, a copy of that fax message is marked as Annexure '8'. That the petitioner in pursuant to the letter dated 13-2-1996 again informed the respondent No. 3 that since they did not receive their funds and as such they were unable to release the payment as per promised schedule, this also reflected that the cheque dated 18-11-1995 was not to be deposited by respondent No. 2 Annexure '9' here to is the copy of the said letter. The respondent No. 2 vide their fax message dated 29-2-1996 requested the petitioner to send payment as promised under the repayment schedule. The respondent No. 2 was demanding repayment schedule after receiving Rs. 25 lacs, which show that the cheque dated 18-11-1995 was to be returned to the petitioner and the same could not be presented in view of the changed mode of payment as rescheduled by mutual consent. Annexure '10' here to is the copy of the said letter dated 29-2-1996.
3. It has been contended that contrary to arrangement between the petitioner and the respondent, No. 2 respondent respondent on 15-3-1996 presented the cheaque of Rs. 1.00 crore on the petitioner's Bankers for the IVth time since November, 1995 and the same was returned by the petitioners Bankers with the remark 'refer to drawer'. It has also been contended that the said post dated cheque No. 640731 dated 18-1 1 -1995 for Rs. 1.00 crore was delivered to the respondent No. 2 only to secure the understanding between the parties and in the event of non payment of any money invested by the respondent No. 3 for acquiring F.C.D.'s on behalf of the petitioner (the Principal). It is further contended that the respondent No. 3 was fully secured regarding the money advanced by them. Since respondent No. 3 himself agreed to receive and accept payment in phased manner and in view of petitioner's difficulties, namely, severe liquidity crunch in the money market consented to re schedulment of the payment and when part payment to the extent of Rs. 25 lacs was made to the respondent No. 3 and the respondent No. 3 agreed to receive back the amount due in phased manner and not to present the cheque to respondent No. 2 not entitled to present the cheue before the petitioner's bankers on 15-3-1996. That respondent No. 3 to harass the petitioner sent advocate's notice dated 12-3-1996 and another notice dated 26-3-1996 asking the petitioner to pay the sum of Rs. 1.00 crore forthwith and threatended to file a complaint under Section 138 of the Negotiable Instruments Act, copy of the said notice is Annexure '11' to this petition. It was contended that notice dated 26-3-1996 was not served on the petitioner/accused before the date of the complaint. It has been contended that the cause of action under Section 138 of the Negotiable Instruments Act came to an end for two reasons i.e., one for being barred by time and the other for the reasons that respondent No. 3 subsequently agreed to accept the payment in phased manner and pursuant to that respondent No. 3 had received Rs. 25 lacs. In this way learned counsel submitted that the complaint filed is not maintainable and is liable to be quashed.
4. It has been further contended by learned Advocate for opposite parties that reliance has been placed on a judgment of Punjab & Haryana High Court in the case of Gulshan Rai v. Anil Kumar Sawhney but the said judgment got reversed by the Supreme Court on 11 -10-1993 as reported in (1994) 79 Com Cas 150. It is further contended that no such allegation was made in the petition vide para 17 of the petition regarding maintainability and for the first time such averment has been made only in the rejoinder-affidavit and no amendment petition was filed. Clear averment in the complaint in paras 4 and 5 are to the effect that notice was served. Hence the disputed facts may be gone into in the trial Court only. Even in the cases where date or fact of service of notice was not slated in the complaint, it cannot be quashed as per rulings reported in (1995) 84 Com Cas 587 (All). 1995 (84) Com Cas 679 (Mad) and (1996) 85 Com Cas 267 (Kerala). Section 139 of the Negotiable Instruments Act specifically provides that unless contrary is proved, cheque shall be deemed to have been received in discharge of whole or part of the debt, liability. Section 138 uses the words 'debt' or other liablity". Clauses 6 and 9 of the agreement clearly provide that the cheque was in discharge of liability and further that it would be duly encashed. The amount for which the cheque was given was not deposited as 'security' but for repayment of liability owed to complainant. It is incorrect that Rs. 25 lacs was in part payment of the amount covered by the cheque. Attention was drawn to para 7 of the supplementary-counter-affidavit. Thus whether any part payment was made or the cheque was for discharge of liability or debt not was towards security, are matters of disputed questions of fact which can be gone into only in the trial Court. Reliance is placed on the following case laws (1996) 5 Com LJ 206. In view of Section 139, it is incumbent upon the Court to presume that cheque was in discharge of debt. He referred to following ruling in support of his contentions: (1992) 73 Com Cas 590 (Cal), (1994) 81 Com Cas 919 (Mad), (1994) 79 Com Cas 540 (Mad) and (1995) 83 Com Cas 354 (Mad). It has been contended that in all these decisions it was held that prima facie it is to be presumed that the cheque was issued in discharge of debt. It was further contended that in view of decisions in'(1996) 85 Com Cas 522 (Cal) where in it was held that any part payment if made will be of no avail to the drawer of the cheque for evading prosecution. If part payment could protect the drawer of the cheque from prosecution under Section 138 of the Act then that would have been a very handy and convenient device for an unscrupulous person to frustrate the very purpose of Section 138.
5. It has been contended that in para 6 of the complaint petition (Annexure-12) to the affidavit, the accused being the Director of Shrishti, Carriers Pvt. Ltd. undertook to pay the proceeds of the Cheque in a number of letters and messages were sent through the fax but failed to make the payment as such the complaint petition was valid and maintainable. It has been further contended that the complainant served the accused with notice dated 26-3-1996 demanding the amount involved in the cheque within 15 days of the receipt of the notice.
6. It has been further contended that since some interlocutory order has been passed, so the petitioner has come before this Court under Section 482, Cr.P.C. for quashing the same.
7. Learned counsel for the other side further submitted that the order of C.J.M. summoning the accused under Section 204, Cr.P.C. is an interlocutory order and in view of ban imposed by Section 397(2), it cannot be challenged under Section 482, Cr.P.C. and as such the accused is required to approach the Magistrate under Section 204, Cr.P.C. and satisfy him that the process ought not to have been issued. Interference by High Court under Section 482, Cr.P.C. is not called for. He has referred the following rulings 1993 All Cri R 430 (All), 193 (202) ITR (Del) (sic) and AIR 1992 SC 2206.
8. Duly considered the submissions and also in view, of the decisions as referred to by the learned counsel for the other side, it is held that a complaint petition is maintainable and the disputed incidents can be gone into after taking the evidence but at this stage I do not find any prima facie case to quash the proceedings or to slay the proceedings under the powers under Section 482, Cr.P.C. Thus the complaint petition filed before the learned Magistrate is definitely maintainable.
9. In view of my discussions made above, I hold that the complaint petition is maintainable and as such this petition under Section 482, I. P.C. is rejected.
10. Stay order, if any, shall stand vacated.