TMI Blog2021 (5) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... nt by the complainant so as to realize first instalment of the amount advance by way of soft loan. The cheque was dishonoured by the banker of the accused for the reason that it exceeded the arrangement. The plea of Mr. Hanan that since the accused had intimated to the complainant in advance for cancellation of the cheques issued by him, the subsequent presentation of the said cheques in the bank and their dishonour would not constitute an offence under Section 138 of the Act, is found to be grossly misconceived. Petition dismissed. - CRMC No. 93/2016 - - - Dated:- 15-4-2021 - HON BLE MR. JUSTICE SANJEEV KUMAR , JUDGE For the Petitioner : Mr. A. Hanan, Advocate. For the Respondent : Mr. Sajjad Ashraf, GA. JUDGMENT 1) The petitioner, by way of this petition filed under Section 561-A of the Code of Criminal Procedure, seeks quashment of the complaint as also the order dated 27th of February, 2016, whereby application of the petitioner/accused seeking his discharge in a complaint filed by the respondents under Section 138 of the Negotiable Instruments Act ( the Act for short) has been dismissed by the Court of Passenger Tax, Srinagar (the Trial Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sts the petition on the ground that the application moved by the accused before the trial court seeking his discharge was highly belated and was filed only with a view to protract the trial and avoid adverse verdict. He contests the argument of learned counsel for the accused and submits that by making a mere request to the payee of the cheque to cancel the cheque and not present it for encashment in the bank does not absolve the drawer of the cheque from his liability under Section 138 of the Act. 8) Having heard learned counsel for parties and perused the record, it is seen that the accused runs a SSI unit under the name and style of M/S Indian Pack Industries, at Industrial Complex Rangreth, Srinagar. The unit aforesaid went into losses and, therefore, same was declared sick in the year 1996. Since the unit of the petitioner/accused was covered by the policy of rehabilitation framed by the then Government, the rehabilitation cost of the project of the petitioner was worked out by the complainant to the tune of ₹ 98.16/ lacs, out of which 30% of the amount was released and disbursed by the complainant. As a security for the aforesaid amount, the accused claims to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra). The judgment in the case of Electronics Trade and Technology Development Corporation Ltd. Stands overruled by a three Judge Bench of the Supreme Court in the case of Modi Cements Ltd. Vs. Kuchil Kumar Nandi, (1998) 3 SCC 249. Paras 16 to 20 of the judgment are noteworthy and are, therefore, reproduced hereunder: 16. We see great force in the above submission because once the cheque is issued by the drawer a presumption under Section 139 must follow and merely because the drawer issues a notice to the drawee or to the bank for stoppage of the payment it will not preclude an action under Section 138 of the Act by the drawee or the holder of a cheque in due course. The object of Chapter XVII, which is intituled as OF PENALTIES IN CASE OF DISHONOUR OF CERTAIN CHEQUES FOR INSUFFICIENCY OF FUNDS IN THE ACCOUNTS and contains Sections 138 to 142, is to promote the efficacy of banking operations and to ensure credibility in transacting business through cheques. It is for this reason we are of the considered view that the observations of this Court in Electronics Trade Technology Development Corpn. Ltd. [(1996) 2 SCC 739 : 1996 SCC (Cri) 454] in para 6 to the effect Suppose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accept this proposition it will make Section 138 a dead letter, for, by giving instructions to the bank to stop payment immediately after issuing a cheque against a debt or liability the drawer can easily get rid of the penal consequences notwithstanding the fact that a deemed offence was committed. Further the following observations in para 6 in Electronics Trade Technology Development Corpn. Ltd. [(1996) 2 SCC 739: 1996 SCC (Cri) 454] (SCC p. 742) 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 induce 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 (emphasis supplied) in our opinion, do not also lay down the law correctly. 19. Section 138 of the Act is a penal provision wherein if a person draws a cheque on an account maintained by him with the banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part of any debt or other liability, is returned by the bank unpa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
