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HIMACHAL PRADESH HIGH COURT
Kuldip Singh, J.
Nexus Health and Beauty Care Pvt.Ltd. and Anr. —Petitioners
versus
National Electrical Office —Respondent
Criminal MMO No. 6 of 2012
Decided on 24.8.2012
Counsel for the Parties:
For the Petitioner:G.C Gupta, Sr. Advocate, Mr. Pawan Sharma, Advocate.
For the Respondent:Mr. B.C. Negi, Advocate.
IMPORTANT POINT
Dishonour of cheque—Accused will have to show that there were sufficient funds in account to encash cheque despite attachment order/court order.
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 139—Criminal Procedure Code, 1973—Section 482—Dishonour of cheque—Cognizance—Stop Payment—Substance of complaint or petition is to be seen and it should not be thrown out merely on technicalities of loose drafting—Accused will have to show that there were sufficient funds in account to encash cheque despite attachment order/court order—Burden is on petitioners and complaint cannot be quashed on this ground—Petitioners have not placed on record court attachment order—There is presumption of delivery of notice within reasonable time after posting on correct address—Respondent prima facie has fulfilled requirements of Sections 138, 141—There is prima facie material for summoning petitioners under Section 138—Petition dismissed. (Paras 27, 31, 32 and 33)
Kuldip Singh, J.— This petition under Section 482 Cr.P.C. has been filed for quashing complaint No. RBT 47/3 of 2009/08 and order dated 17.3.2009 passed by Judicial Magistrate, Nalagarh taking cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘Act’).
2. The facts pleaded in the complaint are that the petitioners had issued a cheque dated 10.6.2008 for Rs.2,00,000 drawn on State Bank of Patiala, Parwanoo, Barotiwala Branch in favour of respondent for installing electricity fittings. The cheque on presentation to the bank was dishonoured with the remarks ‘payment stopped by the drawer vide memo dated 14.7.2008’.
3. The respondent contacted the petitioners, the petitioners assured the respondent that the cheque will be encashed and asked the respondent to present the cheque again. The respondent again presented the cheque but the cheque was dishonoured with remarks ‘payment stopped by the drawer vide memo dated 23.8.2008’. The respondent again contacted the petitioners, who regretted for the dishonouring of the cheque and said that they could not withdraw the instructions made to the bank. The petitioners asked the respondent to again present the cheque and assured its clearance. The respondent in these circumstances again presented the cheque for encashment but it was returned unpaid with the remarks ‘payment stopped by attachment order/court order’ vide memo dated 2.9.2008.
4. The respondent issued notice dated 18.9.2008 under registered cover and UPC which were not returned to respondent. The petitioners despite notice failed to make the payment of the dishonoured cheque. It has been pleaded that petitioner No.2 is the Managing Director and authorized signatory of the cheque. The respondent filed the complaint under Section 138 of the Act. On 17.3.2009 the learned Magistrate found prima-facie case for summoning the petitioners and, therefore, issued process to the petitioners under Section 138 of the Act.
5. The summoning order and the complaint have been assailed by the petitioners on the grounds that the cheque was not dishonoured for want of funds in the account maintained by the petitioners. The cheque was returned on account of court order for attachment of the bank account and, therefore, no offence has been committed under Section 138 of the Act. The complaint is not maintainable.
6. The notice for dishonouring of the cheque and demand of the payment has also not been issued in accordance with mandatory provisions of law. There is nothing on record to show that notice was served on the petitioners. The Court below has not appreciated that prima facie no case is made out on the statement of respondent or from the documents placed on record. The complaint as well as order dated 17.3.2009 are liable to be quashed.
7. Heard and perused the record. Mr. G. C. Gupta, Senior Advocate has submitted that the averments made in the complaint are insufficient to summon the petitioners under Section 138 of the Act. It has been submitted that the complaint has been filed by M/s. National Electrical Office through its Proprietor Subhash Bharwal, but in the complaint, the complainant has been pleaded as firm. The notice dated 18.9.2008 has been issued on behalf of National Electrical Office. The cheque was issued in the name of National Electrical. In the complaint it has been pleaded that cheque has been dishonoured on account of payment stopped by attachment order/court order’. The notice before filing the complaint has not been issued in accordance with law. There is no evidence of service of notice on the petitioners. The pleadings in the complaint are not as per law for summoning the petitioners under Section 138 of the Act. Therefore, the petitioners have committed no offence.
8. The learned counsel for the respondent has supported the impugned order dated 17.3.2009. It has been submitted that name of the business concern of the respondent has been pleaded in para 2 of the complaint
