IMPORTANT POINT
Dishonour of cheque – Consequences of scuttling criminal process at a pre-trial stage can be grave and irreparable.

JUDGMENT

Rakesh Kainthla, J.—The petitioner has filed the present petition for quashing complaint No. 464 of 2019, pending before the learned Additional Chief Judicial Magistrate, Court No.2, Shimla (learned Trial Court). (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present petition are that the respondent/complainant filed a complaint before the learned Trial Court for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (NI Act). It was asserted that the complainant is a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970 having various branches all over India. The accused approached the petitioner for providing financial assistance of Rs.10.00 lacs for obtaining office accommodation. The bank agreed to provide financial assistance. The accused executed various documents. The loan was repayable in monthly instalments. The accused defaulted in repayment of the schedule. She issued a cheque for Rs.1,19,423/- towards the overdue loan liability and other charges. The cheque was presented before UCO Bank, Chakkar but the same was dishonoured with the remarks ‘funds insufficient’. The complainant served a notice upon the accused. The envelope containing the notice was returned by the Postal Department with the remarks ‘refused delivery’. The accused failed to pay the amount. Hence, the complaint was filed for taking action against the accused as per law.

3. The accused filed the present petition for quashing the complaint. It was asserted that the petitioner has filed two complaints regarding one loan which amounts to gross misuse of the process of the Court. The petitioner was withdrawing and depositing the amount as per the account statement annexed by the bank with the complaint. The bank had failed to account for the deposit made by the petitioner/accused. The part payment should have been considered. The notice issued by the bank without taking note of the part payment is bad. There was nothing on record to show that the cheque was issued in the discharge of the legal liability. The complaint is silent regarding the date on which the demand was made by the bank from the complainant. The learned Magistrate has also not mentioned the relevant dates in his order. Therefore, it was ordered that the present petition be allowed and the complaint be ordered to be quashed.

4. The petition is opposed by the respondent by filing a reply denying the contents of the petition. It was asserted that the evidence on behalf of the complainant is complete and the case was listed for recording the statement of the petitioner under Section 313 of Cr.P.C. The petition has been filed with an ulterior motive to delay the disposal of the case. The accused had taken a loan of Rs.10.00 lacs which was repayable in 60 equated monthly installment of Rs.22,549/-. The accused failed to deposit the amount and she issued a cheque for Rs.1,19,423/- to discharge overdue loan liability and other charges. She had herself issued two different cheques on two different occasions; hence two complaints were filed against her. The accused can present her defence before the learned Trial Court. Therefore, it was prayed that the present petition be dismissed.

5. I have heard Mr. G.S. Sawhney, learned counsel for the petitioner/accused and Mr. J.P. Ranot, learned counsel for the respondent/complainant.

6. Mr. G.S. Sawhney, learned counsel for the petitioner/accused submitted that the bank was bound to endorse the amount. He relied upon the judgment of the Hon’ble Supreme Court in Dashrathbhai Vs. Hitesh (2022) 4 Law Herald SC 2892 in support of his submission.

7. Mr J.P. Ranot, learned counsel for the complainant/bank submitted that the averments made in the complaint and the accompanied documents show a prima facie case for the commission of an o