IMPORTANT POINT
Where reply to statutory notice by drawer of cheque made a conditional offer to pay the cheque amount it could not be a ground to quash complaint.

M.R. Shah, J. —By way of this application under Sec. 482 of the Criminal Procedure Code (‘Cr.P.C.’ for short), the petitioner/original accused have prayed for an appropriate order to quash and set aside the complaint being Criminal Case No. 2093 of 2003 pending in the Court of learned Chief Judicial Magistrate, Vadodara.

2. A complaint being Criminal Case No. 2093 of 2003 came to be filed by respondent No.1, herein original complainant against the petitioners in the Court of Chief Judicial Magistrate, Vadodara for the offences punishable under Section 138 read with Sections 141 and 142 of the Negotiable Instruments Act, 1981 (‘NI Act’ for short) alleging inter alia that the complainant had delivered goods to accused Nos. 1 and 2 by raising various invoices and bills aggregating to Rs. 82,03,945.50 as on 2.4.2003. The said invoices and bills were accepted by accused Nos. 1 and 2 without any demur or dispute. It was further averred in the complaint that Accused No. 2 i.e. petitioner No. 2 herein for and on behalf of Accused No.1, in part payment of the acknowledged debt issued complainant two cheques on 10.10.2002 for an amount of Rs. 1,20,943 and Rs. 80,000 respectively. That both the cheques were deposited in the Bank on 20.3.2003 and both the cheques were returned by the Bank with an endorsement, ‘payment stopped by drawer’ and on intimation to that effect was received by the complainant on 28.8.2003. That, the accused persons were served with statutory notice as required under Section 138 of the N.I. Act on 23.4.2003 and as accused Nos. 1 and 2 failed and neglected to pay amount to the complainant towards said cheques, impugned complaint came to be filed for the offences punishable under Section138 read with Sections 141 and 142 of the N.I. Act. That the learned Chief Judicial Magistrate issued summons upon the petitioners for the offences punishable under Section 138 read with Sections 141 and 142 of the N.I. Act. Hence, the petitioners have preferred the present application under Section 482 of the Cr.P.C.

3. Mr. Dipen Shah, learned Advocate appearing on behalf of the petitioners original accused has vehemently submitted that in the reply to the statutory notice, itself the petitioners offered to make payment towards the cheques is question and once there was offer to make payment which has not been accepted by the complainant it cannot be said the petitioners have committed any offence under Section 138 of the NI Act. It is submitted that even reply to the notice has not been produced by the original complainant along the complaint and, therefore, there is suppression and; that the learned Trial Court has acquitted error in issuing summons upon the petitioners. It is submitted that even at the relevant time when the cheques were returned by the Bank the amount in the Bank Account was more than cheques, therefore, it cannot be said that the petitioners have committed any offence under Section 138 of the N.I. Act. Therefore, it is requested to allow the present application by quashing and setting aside the impugned complaint.

4. On the other hand, learned Advocate appearing on behalf of the original complainant has submitted that so called offer made by the petitioners in the reply to the show cause notice cannot be said to be offer for making payment towards the cheque amount so as to take out a case under Section 138 of the Act. It is submitted that as such even considering the offer in the reply to the statutory notice it is conditional offer and, therefore, the same cannot be considered to be valid offer for making the payment. Under the circumstances when cheques have been returned and all the ingredients/conditions making out a case under Section 138 are satisfied impugned complaint is not required to be quashed and set aside in exercise of powers under Section 482 of the Cr.P.C. It is submitted that even otherwise, whatever submitted by the petitioners can be said to be their defences which are required to b