Point of Law: Dishonour of Cheque - Since accused had intimated to complainant in advance for cancellation of the cheques issued by him, subsequent presentation of the said cheques in the bank and their dishonour would not constitute an offence under S. 138 of the Act, is found to be grossly misconceived.

JUDGMENT :

1. The petitioner, by way of this petition filed under Section 561-A of the Code of Criminal Procedure, seeks quashment of the complaint as also the order dated 27th of February, 2016, whereby application of the petitioner/accused seeking his discharge in a complaint filed by the respondents under Section 138 of the Negotiable Instruments Act (“the Act” for short) has been dismissed by the Court of Passenger Tax, Srinagar (the Trial Magistrate).

2. With a view to appreciating the grounds of challenge taken by the petitioner, who shall be hereinafter referred to as the accused, it shall be appropriate to notice few relevant facts.

3. The respondents filed a complaint under Section 138 of the Act before the Trial Magistrate. The Trial Magistrate, after taking cognizance in the matter, issued process for the presence of the accused.

4. In response to the summons issued by the Trial Magistrate, the accused caused his appearance before the Trial Magistrate and filed an application seeking dismissal of the complaint and his discharge on the ground that before the actual presentation of the cheque by the complainant in the Bank, the accused had, in advance, requested the complainant to cancel all the cheques given by him and not to present the same for encashment in the Bank. It is, thus, claimed by the accused before the Trial Magistrate that on presentation of the cheque by the complainant after having been intimated/requested not to do so does not constitute an offence under Section 138 of the Act and, therefore, the complaint is liable to be dismissed.

5. The Trial Magistrate considered the application of the accused and vide its order dated 27th of February, 2016, rejected the same as having no merit. It is this order of the Trial Magistrate dated 27th of February, 2016, the accused is aggrieved of.

6. The impugned complaint as also the impugned order dated 27th of February, 2016, have been assailed by the accused, primarily, on the ground that Section 138 of the Act is not attracted if the person who has issued the cheque informs the payee that he should wait for some time so that the funds are arranged and requests the later not to present the cheque in the bank for encashment. The impugned order dated 27th of February, 2016, is further assailed by the accused on the ground that the Trial Magistrate has failed to appreciate that there was admission of the complainant that it had received the notice of intimation. The Trial Magistrate, without any reason or justification, rejected the application for discharge on the ground that the same had been filed by the accused at a belated stage. It is argued that if the complaint is not maintainable, the same can be challenged at any stage.

7. Mr. Sajjad Ashraf, learned Government Advocate, appearing for the respondents/complainant, contests the petition on the ground that the application moved by the accused before the trial court seeking his discharge was highly belated and was filed only with a view to protract the trial and avoid adverse verdict. He contests the argument of learned counsel for the accused and submits that by making a mere request to the payee of the cheque to cancel the cheque and not present it for encashment in the bank does not absolve the drawer of the cheque from his liability under Section 138 of the Act.

8. Having heard learned counsel for parties and perused the record, it is seen that the accused runs a SSI unit under the name and style of M/S Indian Pack Industries, at Industrial Complex Rangreth, Srinagar. The unit aforesaid went into losses and, therefore, same was declared ‘sick’ in the year 1996. Since the unit of the petitioner/accused was covered by the policy of rehabilitation framed by the then Government, the rehabilitation cost of the project of the petitioner was worked out by the complainant to the tune of Rs.98.16/ lacs, out of which 30% of the amount was released and disbursed by the complainant. As a security for the aforesaid amount, the