2007 (2) Bankmann 23
PUNJAB AND HARYANA HIGH COURT
Ajai Lamba, J.
Balraj Kumar —Petitioner
versus
Smt. Kuldeep Kaur —Respondent
Cri. Misc. No. 19876-M of 2003
Decided on 17-7-2006

Headnote:(i) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Discharge of accused—Cheques issued by respondent in terms of settlement with petitioner dishonoured— Numbers of cheques which were mentioned in settlement did not tally with cheques that were presented by petitioner—Respondent discharged by trial Court—Numbers of cheques presented, numbers of cheques reflected in the notice and the numbers of cheques mentioned in the complaint being the same, respondent cannot take any benefit of different numbers being mentioned in settlement—The question of liability would be a matter of defence to be raised at appropriate stage, not at the stage of charge or discharge of accused—Criminal Procedure Code, 1973—Section 245.

       (ii) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Discharge of accused—In the notice issued under Section 138, Negotiable Instruments Act, double the amount of cheques had been demanded by complainant/petitioner—Respondent discharged by trial Court—Challenged—Held, it is not the case of respondent that in the notice, there was no reference to cheques’ amount—The respondent would have been absolved of her liability under Section 138 of the Negotiable Instruments Act, if she had made the payment of amount covered by cheques within 15 days of receipt of notice—Criminal Procedure Code, 1973—Section 245. (Para 17)

       (iii) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Notice, service of—The relevant provisions of the Act would be satisfied by service of notice under Section 138 of the Act within prescribed time, at the correct address with particular details of the cheques, their dates, amounts, the dates of presentation of the cheques, and the dates when the cheques were returned with the endorsement of the bank as to reasons of dishonour and demand of money. (Para 17)

       (iv) Criminal Procedure Code, 1973—Section 245—Scope—The scope of the Court at the stage of charge or discharge is limited—Only a prima facie case is required to be seen—Detailed and meticulous reference to the evidence, defence and other consideration is not required—Negotiable Instruments Act, 1881—Section 138—Dishonour of cheques. (Para 19)

       Facts of the Case:

        A) Respondent (accused) and petitioner (complainant) were partners in a firm. On 12-10-1991, a settlement was arrived at between them. In terms of settlement two cheques bearing numbers 8224149 and 8224150 for Rs. 4 lacs and Rs. 2 lacs respectively were given to petitioner by respondent.

        B) These cheques when presented for encashment were returned unpaid with the endorsement “funds insufficient”.

        C) The accused was served with notice of demand but failed to pay the amount. Therefore, a criminal complaint under Section 138 Negotiable Instruments Act was instituted.

        D) Accused was summoned by trial Court vide order dated 13-5-1993. Subsequently, an application for discharge was filed by accused. Essentially four grounds were taken; first being that the numbers of cheques which were mentioned in the settlement, did not tally with the cheques that were presented by the petitioner; secondly, that Kuldeep Kaur (respondent) was served in her personal capacity and not as the Managing Director; thirdly that in the notice issued under Section 138 of Negotiable Instruments Act, double the amount had been demanded and; fourthly that the complainant being a partner could not prosecute another partner of the same firm.

        E) Respondent was directed to be discharged on all the grounds by the trial Magistrate. However, in the revision filed by the petitioner, revisional Court did not accept second and fourth grounds.

        F) Now this petition.

        G) Findings of the Court:

        i) Factum of agreement and liability to the tune of Rs. 6 lacs having been admitted by respondent, petitioner had presented cheques to that extent only. Numbers of cheques presented, reflected in the notice and mentioned in the plaint being the same, respondent cannot take any benefit of different numbers being mentioned in settlement dated 12-10-1991. The question of liability would be a matter of defence to be raised at appropriate stage.

        ii) Reference to settlement and liability of drawer to the tune of double the amount would not render the notice illegal and discharge of the accused.

        iii) Order of discharge has caused abuse of process of Court resulting in miscarriage of justice, calling for interference in inherent jurisdiction.

        iv) Proceedings under Section 138 of the Act are clearly maintainable.

       Result: Petition allowed.