IMPORTANT POINT
Subsequent payment of dishonoured cheque though accepted by complainant cannot absolve accused of liability u/s. 138 of Negotiable Instruments Act though rigour of offence may lessen.

Basudeva Panigrahi, J.- The judgment of the Court was as follows:

This is an application under Section 482 of the Code of Criminal Procedure for quashing of the case No. C/2197/96 pending in the Court of the learned Metropolitan Magistrate under section 138 of the Negotiable Instruments Act, 1881.

2. The opposite party was admittedly the financier of the revision petitioner as a reason where of there was a lease agreement dated 10-1-96 between the parties whereby the petitioner had agreed to pay Rs. 7,41,709 per quarter as rental from the total amount of Rs. 1,48,34,180/-. From time to time the petitioner had claimed to have paid the amount but the cheque bearing No. 528582 dated 8th October, 1996 was bounced and immediately thereafter the opposite party sent a notice to the petitioner informing such dishonour of cheque. Even then, when no payment was made the opposite party had filed a case under section 138 of the Negotiable Instruments Act read with section 141. From time to time although summons was sent to the petitioner but when they intentionally avoided to attend the Court, the learned Metropolitan Magistrate was, therefore, obliged to issue Warrant of Arrest against the petitioners. Therefore, being aggrieved by such issuance of Warrant of Arrest, the petitioners have filed this application for quashing of the criminal case.

3. Mr. Mukherjee, the learned advocate appearing for the petitioners has submitted that the amount for which the cheque of Rs. 7,41,709 was dishonoured, the petitioners had subsequently sent the cheque for the said amount which was duly accepted by the opposite party. In that view of the case the offence alleged to have been committed by the petitioners cannot be legally said to have been committed by them in view of such payment. It is said that the lease agreement seems to have been executed at Delhi in which there was agreement between the parties that any dispute with regard to the interpretation of Clause or enforcement of the Clause of the Lease Deed, the Delhi Court should have jurisdiction to try such cases. In that view of the matter, the complainant-opposite party should not have been permitted to file a complaint under section 132 read with section 141 within the Calcutta Metropolitan Magistrate's jurisdiction. Another contention has been made that all the payments made through cheque to the opposite party were encashed only at Bombay but how the respondent had preferred to present the cheque, which is in dispute, at Calcutta.

4. Mr. Rahaman, the learned advocate appearing for the complainant opposite party has of course disputed the above facts and submitted that the agreement was executed in Calcutta and the cheque was delivered in Calcutta which was also dishonoured here at Calcutta. Therefore, the Calcutta Metropolitan Magistrate is legally competent to take cognizance of such offence.

5. Reliance was placed by Mr. Mukherjee on 138(c) of the Negotiable Instruments Act, 1881 which runs as follows:

"the drawer of such cheque fails to make the payment of the said amount of money to the payee, or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice."

Explanation-For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.

6. It has been submitted that since the debt or other liability means a legally enforceable debt or other liability as the payment had been already made to the respondent, thus it cannot be said to be legally enforceable at the moment so that the petitioners can be asked to contest the case. It has been further submitted that cognizance under section 142 can be taken under Clause (c) of the proviso to section 138 since there has been no cause of action. Therefore, the Calcutta Metropolitan Magistrate has no jurisdiction.

7. From the submission of the learned Advocate appearing for the petitioners it appears that since the payment has already been made ag