Cheque dishonour complaint under Section 138 not quashable under inherent powers when reason for return (insufficient funds vs. account freeze) is disputed and requires evidentiary determination at trial.

JUDGMENT :

Sandeep Sharma, J.

By way of present petition, prayer has been made by the petitioner to quash and set-aside complaint filed by the respondent/ complainant under Section 138 of Negotiable Instruments Act, pending in the court of learned Additional Chief Judicial Magistrate Theog, in case No. 335 of 2022.

2. Precisely, the grouse of the petitioner as has been highlighted in the petition and further canvassed by Mr. Ravinder Singh Chandel, Advocate, is that no case much less under Section 138 of the Negotiable Instruments Act (in short “Act”) is made out against the petitioner for the reason that cheque issued by the petitioner-accused towards discharge of lawful liability was never dishonoured on account of “insufficient funds” in his bank account, rather same came to be returned vide return memo dated 6.7.2022 with remarks “account freezed”. While referring to return memo placed on record (Annexure P-2), learned counsel for the petitioner, submitted that since cheque amounting to Rs.10.00 lakh issued by the petitioner towards discharge of his lawful liability was never presented for clearance, no case under of the Act, could have been lodged against the petitioner. While making this Court peruse provisions contained in of the Act, Mr. Chandel, submitted that had cheque issued by the petitioner dishonoured on account of unavailability of funds in the bank account of the petitioner, respondent/complainant was well within his right to institute proceedings under of the Act, but once cheque was never presented by his bank for clearance for the reason that account of the bank stood freezed, this Court while exercising power under Section 528 of BNSS is required to quash the complaint, which otherwise is bound to fail.

3. To the contrary, Mr. Pawan Sharma, learned counsel representing the respondent/complainant vehemently argued that present petition filed under Section 528, is not maintainable for the reason that whether cheque issued by the accused towards discharge of lawful liability was returned on account of insufficient funds or on account of freezing of the bank account of the complainant is a question to be decided by the learned trial Court on the basis of evidence led on record by the respective parties. He stated that mere placing on record of copy of return memo, may not be sufficient rather such document is required to be proved in accordance with law. He further submitted that even if account of the complainant was freezed, there was no power, if any, for the bank concerned to receive the payment and as such, issue otherwise sought to be decided in the instant proceedings, requires trial to be decided on the basis of evidence collected on record by the respective parties

4. Having heard learned counsel for the parties and perused material available on record, though this court is in full agreement with the learned counsel for the petitioner that this Court is well within its right to exercise power under Section 528 of BNSS to prevent abuse of process of law, but correctness and genuineness of the return memo placed on record of instant file, cannot be gone into in instant proceedings, rather same is required to be proved in accordance with law. Needless to say, while exercising power under of for quashing of FIR as well as complaint, though court concerned may sift the evidence for the purpose of inferring prima-facie case, but certainly, it cannot appreciate the evidence adduced on record, rather that can only be appreciated by the learned trial Court in totality of evidence collected on record by the respective parties.

5. In nutshell, case of the petitioner is that cheque amounting to Rs.10.00 lakh issued towards discharge of lawful liability of the accused was never dishonour