TMI Blog2013 (9) TMI 1188X X X X Extracts X X X X X X X X Extracts X X X X ..... the complaint had been quashed. The appellant could not furnish any sufficient cause for their non-appearance on the date of quashing of complaint and by taking a technical view of the matter, these appeals could have been rejected even on the ground of non-sufficiency of material furnished by the appellant in the High Court against refusal to recall the order. But considering the fact that the appellant would be deprived of their due amount of dishonoured cheque, Court considered just and appropriate to direct the respondents to make the payment for the sake of substantial justice to the complainant-appellant as also in view of the analogous appeal whereby the High Court had allowed the petition filed by the respondents herein under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in a company known as M/s. Ria Constructions Ltd. and was pleased to quash the complaint lodged by the appellant as also all consequential proceedings pending before the Magistrate in regard to the complaint lodged by the appellant for an offence under Section 138 of the Negotiable Instruments Act, 1881. 3. Admittedly, the accused no. 2 in the complaint had issued the cheque in favour of the appellant for a sum of ₹ 2,50,000/-, which was dishonoured as there was instruction of 'stop payment' by the Managing Director. This led to the lodgment of a complaint at the instance of the petitioner in which proceedings started. 4. At this stage, the respondents herein filed a petition under Section 482 of the Code of Criminal P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant should not be deprived of the amount for which the respondents had stopped payment which led to the lodgment of the complaint. We, therefore, suggested to the respondents that they should honour the cheque which had been issued by them by making the payment along with the interest, which would be in the nature of compensation for stop payment instructions at their instance and that amount by way of lump sum amount including interest and compensation would be around ₹ 5 lakhs. 7. The respondents have agreed to pay the said amount but the appellant has refused to accept the payment and insisted that the appeal against rejection of the recall application should be allowed by this Court. Counsel for the appellant submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndorsement like (I) refer to drawer (ii) exceeds arrangements and (iii) instruction for stop payment and like other usual endorsement, it amounts to dishonour within the meaning of Section 138 of the Act. Therefore, even after issuance of notice if the payee or holder does not make the payment within the stipulated period, the statutory presumption would be of dishonest intention exposing to criminal liability. 10. But in the instant case, the negotiable instrument which admittedly is a cheque was issued by respondent no. 2 who is the managing director and the contesting respondents herein against whom the proceedings have been quashed are not the director of the company in a statutory capacity and, therefore, the payments towards cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant had failed to offer any sufficient cause for their non-appearance on the date when the complaint had been quashed and if we were to be driven to merely taking a technical view of the matter, these appeals could have been rejected even on the ground of non-sufficiency of material furnished by the appellant in the High Court against refusal to recall the order in which case the petitioner cannot realise even the amount towards the cheque issued in their favour. But considering the fact that the appellant would be deprived of their due amount of ₹ 2,50,000/-, we delved into the factual details and considered just and appropriate to direct the respondents to make the payment for the sake of substantial justice to the complaina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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