The defense of stop payment under Section 138 of the Negotiable Instruments Act is not valid if there were insufficient funds in the account of the accused at the time of presentation of the cheque.

Sunil Kumar Sinha, J.

1. Heard on admission.

2. This revision is directed against the order dated 28-8-2006 passed in Criminal Appeal No. 43/2006 by the IInd Additional Sessions Judge, Mahasamund (CG) by which learned ASJ has partly allowed the appeal of the applicant and while confirming the conviction dated 4-2-2006 under Section 138 of the Negotiable Instruments Act, 1881 reduced the quantum of sentence from 6 months' R.I. and fine of Rs. 51,000/- to sentence till rising the Court and fine of Rs. 55,000/-. It was further directed that out of Rs. 55,000/-,51,000/- shall be paid to the son of the complainant (since complainant has died during the pendency of appeal) and rest of the amount shall be paid to the State.

3. The brief facts are that the complainant-Amarnath had filed a complaint under Section 420, IPC and Section 138 of the Negotiable Instruments Act before the Trial Court inter alia pleading that on 3-3-1998, he had given Rs. 51,000/- to the applicant as the amount of loan and the applicant, had issued a cheque dated 29-5-2000 for repayment of the said amount payable at State Bank of Indore, Branch Mahasamund. The number of the cheque was 1312133 and it was dated 31-5-2000. The said cheque was produced for collection before Zila Sahakari Kendriya Bank Maryadit, Branch Mahasamund, which was returned unpaid on 1-6- 2000. On this, the complainant made contact with the applicant but he did not ratify the payment, thereafter, he served him a registered notice by post but no compliance was done and ultimately a complaint under the aforementioned Section of IPC and Negotiable Instruments Act was filed.

4. During the course of trial, the complainant examined himself and he also examined one Prasanjeet, Manager, State Bank of Indore, Mahasamund and Shesh Narayan, Clerk, Zila Sahakari Central Bank, Mahasamund. In the statement under Section 313, Cr.PC, the applicant took the defence that in fact, he had not taken any loan from the complainant rather he had given Rs. 51,000/- to him for some construction work and since the construction was not done, he had written a letter for "stop payment" due to which the payment was not made.

5. The Trial Court after, concluding the trial, held the applicant guilty of offence under Section 138 of the said Act and convicted him as aforementioned. In the appeal, the appeal against the said order was partly allowed by the impugned judgment, as stated above, against which this revision has been filed.

6. The conviction is based upon the testimony of the complainant and the above 2 witnesses. The Appellate Court observed vide Para 11 that though an application for stop payment was made by this applicant but at the relevant time, account of the applicant was possessing Rs. 48.40 paise only, therefore, even if application for stop payment would not have been made, the payment was not possible in favour of the respondent. In fact, Prasanjeet made this statement that in the relevant time, the account was possessing only Rs. 48.40 paise.

7. Learned Counsel for the applicant argues that it was a case of stop payment, therefore, an offence under Section 138 of the Negotiable Instruments Act would not be made out.

8. It is well settled law that the stop payment comes under the purview of Section 138 until accused prove that sufficient funds were there in account and stop payment notice was given to bank for some valid causes. Even if cheque is dishonoured by reason that payment of the cheques had been stopped by the drawer, complaint under Section 138 is maintainable. Even when the cheque is dishonoured by reason of stop payment instructions by virtue of Section 139, the Court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the 'stop payment' instruction were not issued because of insufficiency or paucity of funds. If the accused shows that in his account