IMPORTANT POINT
Case under Section 138 of Negotiable Instruments Act cannot be held maintainable against petitioners on account of stop payment instructions.

Atul Sreedharan, J.—The present petition has been filed by the petitioners for quash of proceedings in complaint case No. 1651/2009 (Padam Kumar singhania v. Aneja Constructions India Ltd.) pending before the Judicial Magistrate First Class, Budhar, Distt. Shahdol. The complaint case has been filed to prosecute the petitioners for offences under Section 420 of I.P.C. and under section 138 of the Negotiable Instruments Act.

2. The brief facts essential to appreciate the instant case are as follows. The petitioner No. 1 is a construction company engaged in the construction and upgradation of roads. The company was awarded the contract under the Pradhan Mantri Gram Sadak Yojna for the construction of roads in the rural areas of Shahdol District. The petitioner No. 2 is the Managing Director of the petitioner No. 1 and petitioners No. 3 to 6 are the Directors of the Company. The complainant is a partner of Tirupati Constructions, Budhar who supplied ready open graded premix carpet (hereinafter referred to as OGPC) used for the construction of road. A purchase order for the supply of OGPC material was placed on Tirupati Constructions, Budhar, of which the respondent is one of the partners, on 1.4.2009. The purchase order has been signed by the authorised signatory of petitioner No. 1 and by the respondent for Tirupati Constructions. In the said purchased order, Clause 6 reveals that three cheques drawn on the Bank of Baroda at its Shahdol Branch for Rs. 5,00,000/- each dated 1.4.2009, issued in favour of Tirupati Constructions. The clause specifically mentions that the cheques were issued against security and not as an advance or payment against the bills which may be raised by the Tirupati Constructions. These cheques bore cheque Nos. 8005, 8006 and 8007. On 24.6.2009, the respondent deposited the cheque No. 8005 and got the same encashed. It is relevant to state here that Clause 7 specifically required the respondent not to use any of the cheques given to him without written intimation to the petitioner No. 1.

3. Learned counsel for the petitioners submits that the said clause notwithstanding, the respondent enchased cheque No. 8005 on 24.6.2009 without any prior intimation to the petitioner No. 1. No written submissions/reply is on record on behalf of the respondent. This is infact the second round of litigation between the parties before this Court. Earlier also, the petitioners had filed M.Cr.C. No. 13454/2009 for the quashment of the said case which was disposed of vide order dated 2.2.2010 passed by this Court, whereby liberty was granted to the petitioners to file an appropriate application before the trial Court relating to the non-maintainability of the complaint filed by the respondent and the trial Court was directed to consider the same in detail and decide the issue. Thereafter, the petitioners moved the application before the learned trial Court for dismissal of the case, which was rejected vide order dated 18.3.2010 passed by the learned trial Court. The short point that is to be ascertained in this case is whether the complaint case is itself maintainable in light of the purchase order dated 1.4.2009 which is a document of unimpeachable quality and which has been admitted to by the respondent in the complaint filed by it in paragraph No. 5 where there is a reference to the purchase order and the three cheques.

4. Clause 6 of the purchase order makes it unequivocally clear that the three cheques that were given to the respondent valued at Rs. 5 Lacs each, were given against the security and not for the purpose of payment against the bills which were to be raised by the respondent. By abundant caution, Clause 7 was also added according to which, the said cheques were not to be used without written intimation being given to the petitioner No. 1. The purchase order is an admitted document as it bears the signature of the respondent.

5. As the respondent, in violation of the said instructions in Clause 6 of the purchas