Mr. O.P. Jain, J. - This is an application u/Sec.482 Cr. P.C. for quashing the proceedings u/Sec.138 of Negotiable Instruments Act.

2. The brief facts of the case leading to the application are that accused Deepak Agarwal is the Managing Director of M/s Sharp Carbon India (P) Ltd. and complainant Shanti Swarup Jain is a partner of M/s. Jain Paper Mart, Agar. The accused issued two cheques to the complainant firm for a sum of Rs. 45,000/- and Rs. 10,000/- respectively. The cheques were sent for encashment through Union Bank of India but the cheques of Rs.45,000/- was returned by the bank with the remark 'refer to drawer' and the cheque for Rs.10,000/- was returned with the remark 'cheque is mutilated'. On receipt of the information that the cheque has been dishonoured a notice was issued by the complainant under postal order as well as by registered post and when the accused failed to, make payment within a period of fifteen days, the present complaint was filed. The application u/Sec.482 Cr. P.C. has been filed for quashing the complaint.

3. I Rave heard the learned Counsel for the applicant and the learned A.G.A. for the State and Shri Rajesh Tandon for respondent and have gone through the record.

4. It may be stated at the very out set that so far as the complaint relates to the dishonour of the cheques for Rs. l0,000/- the petition u/Sec 482 Cr. P.C. must be allowed because it is an admitted fact that the cheque for Rs. 10,000/- was not dishonoured by the bank for want of funds in the account of the drawer. ThechequeforRs.10,000/ - was returned with the remark that it is mutilated. Therefore, the petitioner is entitled to succeed so far as the cheque of Rs. 10,000/- is concerned.

5. Coming to the cheque for Rs. 45,000/- the contention on behalf of the accused - appellant is that it was a post dated cheque and that its payment was stopped by the accused by addressing a letter to the bank on 25.11.91. Therefore, according to the learned Counsel for the applicant, no offence is made out against the accused. In support of this contention the learned Counsel for the applicant has cited 1992 Crl. L.J. 3946 and 1992 Current Criminal Reports, 1848.

6. Before discussing these cases cited on behalf of the applicant, the facts which are established from the affidavit filed by the applicant and the counter affidavit filed by the respondent may be stated. It is not disputed that the cheque bearing the date 30.11.1991 was a postdated cheque. The controversy centres around the fact as to whether on the date on which the cheque was presented for encashment, there was or was not sufficient balance in the account of the drawer of the cheque. It is alleged in the complaint Annexurel that the cheque for Rs. 45,000/- was returned by the bank for want of funds in the account of the accused. In Annexure 4 to the counter affidavit the complainant has filed a copy of the letter received from the accused in which the following statement has been made by the accused.

"We have issued you a post-dated cheque No. 137344 dated 30.11.1991 for Rs. 45,000/- with the presumption that the funds will be arranged within this period but it is regretted that funds are not available at present. You are therefore, requested to kindly with-hold presentation of the cheque and oblige."

7. In para No.2 of C.A. '3' which is a letter from the accused to the complainant it is said 'post-dated cheque No. 137344 dated 30.11.1991 for Rs.45,000/- was with-hold due to non-availability of funds well before 30.11.91'.

Again in Annexure '2' to the counter affidavit which is also a letter by the accused to the complainant it is said ‘that due to heavy blockade' of our funds with the Government department it is not possible at this moment to release your entire payment. However, on receipt of your confirmation of the account, cheque of the different dates will be issued to you.

8. It is not denied in the rejoinder affidavit that these letters were sent by the accused to the compl