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PUNJAB & HARYANA HIGH COURT
V.M. Jain, J.
M/s. Steel Authority of India Ltd. - Petitioner
versus
B.D. Aggarwal and Sons Ltd. - Respondent
Criminal Appeal No. 33795-M of 2000
Decided on 16-8-2001
Counsel for the parties:
For the Petitioner: Mr. Navdeep Singh. Advocate.
For the Respondent : Mr. Pankaj Bhardwaj. Advocate.
IMPORTANT POINT
Even if the cheque is dishonoured because of stop-payment instructions to Bank, Section 138 of Negotiable Instruments Act shall be attracted.
Headnote:(i) Negotiable Instruments Act, 1881 - Sections 138 and 139 Cheque dishonoured on ground that payment was stopped by drawer - Accused company and its directors summoned for offence - Sessions Court in revision set aside summoning order holding that it was a civil dispute and cheque in question would not be held to have been issued in discharge of existing cheque was dishonoured it was an offence. (Paras 5 & 6)
(ii) Criminal Procedure Code, 1973 - Section 397 - Revisional jurisdiction - Sessions Court in exercise of revisional jurisdiction set aside summoning order passed by Magistrate for offence under Section 138 of Negotiable Instruments Act - No occasion for Sessions Judge to hold that mere fact that accused was to pay some amount to company (Complainant), was not sufficient to hold that cheque was issued for legally enforceable liability - Finding to effect that circumstances supported version of accused that there was blank cheque with complainant party and that it could not be held that cheque was issued, for legally enforceable liability on the date it was issued were contrary to law as at revisional stage there was no occasion to make such observation. (Paras 6 & 7)
(iii) Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque - Summoning order set aside by Sessions Court in revision holding that cheque was dishonoured for "stop payment" and not for "insufficient funds" - View of Sessions court was wrong and unsustainable in view of Supreme Court judgment in any debt or other liability - There was no occasion for accused to have rebutted such presumption at preliminary stage - Observation made by Sessions Court were against very purpose for which law was enacted - Even if there was civil dispute between parties, since notice to drawee or to Bank to stop payment, it will not preclude action under Section 138 of the Act. (Paras 12 to 14)
Result: Appeal allowed.
V.M. Jain, J. - This is a petition under Section 482, Cr. P.C. filed by the complainant-petitioner, seeking quashment of the order dated 24.7.2000, passed by the Additional Sessions Judge, Jalandhar accepting the revision petition of the accused respondent. M/s B.D.- Aggarwal and Sons Limited and setting aside the order of summoning dated 24.3.1998, passed by the CJM. Jalandhar, by which the accused were ordered to be summoned under section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act) in the criminal complaint, filed by the present petitioner. M/s Steel Authority of India Limited.
2. The facts of this case, in brief, are that M/s Steel Authority of India Limited (complainant) filed a criminal complaint dated 26.10.1998. copy Annexure P2, against accused No. 1, B.D. Aggarwal and Sons Limited, under Section 138 of the Act, through Sh. Parmod Kumar Aggarwal, its Director and seven other persons, being the Directors and other Officers of the said firm (in all there were eight accused). In the said complaint, it was alleged that in pursuance of the memorandum of understanding, arrived at between the parties accused No. 1 Company had been purchasing material from the complainant Company from time to time on credit, which included the supply of material of the total invoice value of Rs. 8.96.256/-. It was alleged that in order to discharge the aforesaid legal liability the accused issued a cheque No. 86876 dated 29.7.1996 for Rs. 8.96.256/- in favour of the complaint Company, drawn on the State Bank of India. New Railway Road Branch, Jalandhar, assuring that on presentation the said cheque shall be honoured. It was alleged that the said cheque was presented for encashment on 31.8.1996 through State Bank of India. Main Branch but the same was returned unpaid on the ground that the payment had been stopped by the drawer. It was alleged that the said intimation was received by the complainant on 3.9.1996. It was alleged that on receipt of this information regarding dishonouring of the cheque, legal noticed dated 16.9.1996 was served upon them to make the payment for the aforesaid dishonoured cheque but despite the service of the said notice the accused had not made any payment to the complainant and. had thereby committed the offence under Section 138 of the Act. It was alleged that accused Nos. 2 to 6 were Directors of accused No. 1 - Company, whereas accused Nos. 7 and 8 were the Finance Executive and Authorised Dealing Representative, respectively, of accused No. 1 Company and had been actively engaged in the day-to-day business of accused No. 1 Company. It was alleged that they all were the persons in-charge of and were responsible to the said Company for the conduct of its business and as such, all these accused were liable for the commission of offence under Section 138 of the Act. After recording preliminary evidence, the learned CJM, vide order dated 24.3.1998, copy Annexure P3, ordered the summoning of all the eight accused for the offence under Section 138 of the Act. Aggrieved against the said order of summoning passed by the learned CJM, one of the accused namely M/s B.D. Aggarwal and Sons. Limited, through its Director, Mohar Singh Kaushal, filed a revision petition before the Sessions Court, challenging the order dated 24.3.1998, passed by the learned CJM, ordering summoning of the accused for the offence under Section 138 of the Act. The said petition was contested by the complainant, by filing a written statement, copy Annexure accepted the revision petition and set aside the summoning order, passed by the learned Magistrate and dismissed the complaint, vide order dated 24.7.2000. Aggrieved against this order of the learned Additional Sessions Judge, the complainant, M/s Steel Authority of India Limited, filed the present petition under Section 482, Cr. P.C. in this Court seeking quashment of the above said order dated 24.7.2000, passed by the learned Additional Sessions Judge.
3. I have
