IMPORTANT POINT
When payment of cheque was got stopped despite sufficient funds in the account but disputing the higher rates claimed by complainant question of alleged disputes in rates could be gone into by Magistrate in trial and proceedings could not be quashed.

S. Sardar Zackria Hussain, J.—The accused 1 and 2 in C.C.No.6381 of 2001 on the file of the VII Metropolitan Magistrate Court, George Town, Madras, are the petitioners. This Criminal Original Petition is filed to quash the complaint in the said case taken on file under Sections 138 and 141 of Negotiable Instruments Act.

2. It is stated in the Original Petition by the petitioners that for the supply of maida and sooji to the petitioners by the respondent/complainant as per invoice bearing No. 93433 dated 17-10-2001, the cheque bearing No. 426736 dated 29-10-2001 drawn on UTI Bank Ltd., was issued and the cheque when presented on 5-11-2001 was returned unpaid with the remarks “payment stopped by the drawer” and informed accordingly on 7-11-2001. The lawyer notice dated 9-11-2001 of the complainant was replied by the accused on 21-11-2001 denying the liability. By way of grounds, it is urged by the petitioners that no offence under Section 138 of the Negotiable Instruments Act has been made out and the cheque was not returned on the ground of “insufficiency of funds” and in the absence of such allegations or averments, the complaint will not lie. Though the petitioners had sufficient funds in their account, in view of dispute between the petitioners and the respondent in releasing the payment, the payment was stopped, which is also stated in the reply notice.

3. The petition is opposed in the counter that the second accused intentionally after issue of the cheque has issued stop payment instructions to the bank without any reasons and sent the reply notice denying liability. The grounds raised by the petitioner/accused to quash the complaint is purely facts relating to the pricing of the commodities supplied to the petitioner/accused. But the accused have not disputed the liability in respect of the invoice concerned with the cheque on the basis of which the private complaint has been filed. The accused in the letter dated 3-11-2001 has not stated to stop the presentation of cheque and also has not given intimation about its intention to stop the payment of the cheque. The question of alleged pricing dispute, maintaining balance in the accounts, can be gone into during the enquiry in the criminal case.

4. Heard the learned counsel for the petitioners and the learned counsel for the respondent.

5. The learned counsel for the petitioners argued that inasmuch as the cheque was not returned on the ground of “insufficiency of funds” and the cheque was returned unpaid with the remarks “payment stopped by the drawer”, the offence under Section 138 of the Negotiable Instruments Act is not attracted and it will not come within the mischief of that Section.

6. The learned counsel for the respondent company contended that the accused issued stop payment instructions to the bank without any reasons and in the reply notice, the liability is denied by the petitioner/accused. The grounds raised in the petition to quash the proceedings in C.C. No. 6381 of 2001 is purely facts, which can be urged only during the enquiry. The learned counsel also submitted that the accused are not disputing liability in respect of the invoice concerned with the cheque for which complaint has been filed and inasmuch as the accused have not disputed the issuance of the cheque for the debt, the offence under Section 138 of the Negotiable Instruments Act is attracted. The learned counsel also submitted that the accused has not stated in the letter dated 3-11-2001 to stop the presentation of cheque and also not given intimation about its intention to stop the payment of cheque.

7. The issuance of the cheque for Rs. 43,047.70 dated 29-10-2001 towards supply of maida and sooji to the accused by the complainant has not been denied by the accused. According to the accused, offence under Section 138 of the Negotiable Instruments Act will not attract, in view of the fact that the cheque was not returned for “insufficiency of funds” and that there is also no specific ave