Point of Law : High Court has committed grave error of law in quashing criminal complaints filed by appellant in respect of offence punishable under Section 138.

ORDER :

The instant petition has been filed for the grant of following substantive relief :

“That the proceedings initiated by the respondent against the petitioner under Section 138 of the Negotiable Instruments Act in Case No.11/3 of 2016 pending before the learned Judicial Magistrate 1st Class, Jubbal, District Shimla, may kindly be quashed and set aside.”

2. As per the petitioner, in the year 2015, he approached the complainant (respondent herein) and requested him to grant a loan of Rs.1,50,000/- (Rupees one lac and fifty thousand only) to purchase the goods for his shop and assured that the amount will be returned to him as early as possible. Thereafter, the petitioner issued a post dated cheque bearing No.580690, dated 25.1.2016 amounting to Rs.1,50,000/- (Rupees one lac and fifty thousand only) of State Bank of India, Branch Jubbal, District Shimla, when the said cheque was presented in the Bank, the same was returned back with the remarks ‘Insufficient funds’. The complainant issued a legal notice to the petitioner-accused, which was duly received by him, vide acknowledgement dated 5.2.2016. Hence, the instant petition.

3. Learned counsel for the petitioner has strenuously argued that the instant complaint is liable to be dismissed and the proceedings pending before the learned Court below are required to be quashed for the simple reason that the cheque, which is alleged to have been issued was not inter city cheque and it shows that the cheque was of the earlier date. He has argued that as the cheque was not dishonoured for the reason that there was insufficient funds, so the instant petition is liable to be quashed. On the other hand, learned counsel for the respondent has vehemently argued that the cheque was issued for its liability and the same was dishonoured by the Bank, which fact has come on record in the statement of Shri Parmod Singh, Official of the Bank that the cheque was dishonoured on account of insufficient funds.

4. I have heard learned counsel for the parties and gone through the entire records of the case carefully.

5. After hearing learned counsel for the parties and going the entire documents, which have come on record, this Court finds that the only case of the petitioner is that the cheque was not dishonoured on account of insufficient funds, but it was dishonoured for the simple reason that it was not admissible, as it was not a multicity cheque, which is required after 2012. As per the statement of Official of the Bank recorded before the learned Court below, it is clear that the cheque Ex.CW1/B was presented in the Bank for its encashment, but the same was not dishonoured on account of insufficient funds.

6. Hon’ble Apex Court in HMT Watches Limited vs. M.A. Abida and another 2015 (11) Supreme Court Cases, 776, has held as under :, 10, 13, 15

“Having heard learned counsel for the parties, we are of the view that the accused (respondent no.1) challenged the proceedings of criminal complaint cases before the High Court, taking factual defences. Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties. In our opinion, the High Court should not have expressed its view on the disputed questions of fact in a petition under Section 482 of the Code of Criminal Procedure, to come to a conclusion that the offence is not made out. The High Court has erred in law in going into the factual aspects of the matter which were not admitted between the parties. The High Court further erred in observing that Section 138(b) of N.I. Act stood uncomplied, even though the respondent no.1 (accused) had admitted that he replied the notice issued by the complainant. Also, the fact, as to whether the signatory of demand notice was authorized by the complainant company or not, could not have been examined by the High Court in its jurisdiction under Section 482 of the