IMPORTANT POINT
When the drawer of cheque paid the cheque amount on its dishonour but payee represented the cheque for realization of further outstanding dues and on its bouncing filed complaint u/s 138 of N.I. Act, such prosecution was not maintainable.

R. Regupathi, J.—The petitioner is the sole accused for the offence punishable under Section 138 of Negotiable Instruments Act pending in C.C. No. 3869 of 2005 on the file of XVIII Metropolitan Magistrate, Saidapet, Chennai.

2. In a business transaction, for supply of metal cutting tools and machine tools, there was an outstanding for a sum of Rs. 1,27,983.02 payable to the complainant by the petitioner/accused. As part payment of the total liability, the petitioner is stated to have issued a cheque for a sum of Rs. 50,000, bearing No. 0763994, dated 15.6.2004, drawn on Bank of India, Adityapur Branch, Code-4503, Jamshedpur. The complainant/respondent is stated to have deposited the same into the Bank for collection on 25.11.2004 through Central Bank of India, Ballygunge, Kolkata, and since the cheque was returned with an endorsement “Exceeds Arrangement”, private Complaint has been filed.

3. The learned counsel for the petitioner submits that it is true that a cheque bearing No. 0763994 dated 15.6.2004 has been issued to the complainant. However, after dishonour, a Demand Draft bearing No. 020120, dated 27.10.2004, has been issued to the complainant/respondent and an acknowledgement has also been received in this regard, wherein it has been stated as follows:

“Received with thanks for a D/D (No. 020120 Dated 27.10.2004) of Rs. 50,000/- (Rupees fifty thousand only) on Kolkata service branch against your bounced cheque No. 0763994 of Dated 15.6.2004. The above cheque we will send back to you through post or courier.”

Pointing out the same, learned counsel for the petitioner also submits that the very same cheque has been redeposited again on 25.11.2004 and after dishonour, the present Complaint has been filed. According to him, since the amount mentioned in the cheque has been paid by way of Demand Draft drawn on 27.10.2004, the offence punishable under Section 138 of Negotiable Instruments Act will not be attracted and the present Complaint is not maintainable; therefore, he seeks to quash the proceedings.

4. Per contra, the learned counsel for the respondent/complainant submits that the outstanding amount is Rs. 1,27,983.02 and though the cheque bearing No. 0763994, dated 15.6.2004, has been initially dishonoured and Rs. 50,000/- has been paid by the petitioner/accused through Demand Draft No. 020120, dated 27.10.2004, still balance amount is due; that being so, the complainant/respondent is entitled to deposit the very same cheque for realisation of the balance amount and on that score, there is nothing wrong in re-depositing the cheque for realisation and since on such redeposit, the cheque has been dishonoured, the offence punishable under Section 138 of Negotiable Instruments Act is made out and seeks for dismissal of the Petition.

5. I have perused the materials available on record. The dispute revolves around issuance of the cheque bearing No. 0763994 dated 15.6.2004. Admittedly, the cheque has been deposited for collection and it has been dishonoured. After the first dishonour, Demand Draft No. 020120, dated 27.10.2004, has been issued by the petitioner to the complainant and an acknowledgement has also been received in this regard.

6. Under such circumstances, the liability arising from the instrument/cheque gets cleared on payment of the same amount through Demand Draft on a subsequent date. It is unfortunate that in the Complaint, the respondent/complainant failed to mention about the first deposit, dishonour and also receipt of Rs. 50,000/- on subsequent date. In para No. 3 of the Complaint, it is simply stated that the cheque dated 15.6.2004, bearing No. 0763994, deposited for clearance on 25.11.2004, was returned by the Bank on 2.12.2004 and intentionally, there is no whisper about the subsequent payment of the amount mentioned in the instrument.

7. Thus, prima facie it appears that the complainant has purposely suppressed in the Complaint the receipt of Rs. 50,000/- i.e., the cheque amount, by way of demand dr