Dishonouring of cheque on the ground that instructions for stopping payment were given by the accused would bring such act within the mischief of Section 138 of the Negotiable Instruments Act, 1881.

( 1 ) HEARD Sri Anil Kumar Srivastava, learned counsel for the petitioner and Sri Pankaj Naqvi, learned counsel for respondent No. 2 as also the learned A. G. A. representating respondent No. 1.

( 2 ) THE respondent No. 2 had filed a complaint against the petitioner which is Annexure 1 to the writ petition. The allegations in the complaint were that the complainant had advanced a loan of Rs. 50,000. 00 to the accused (petitioner) which was not returned by the accused. on making repeated demands the accused issued an Account payee cheque dated 23-1-1995. The complainant deposited the cheque with Canara Bank, Civil Lines, Bareilly for realisation of the amount and for crediting the same in the complainants Savings Bank Account No. 7196. The accused, however, directed the bank to stop the payment. The complainant approached the accused and enquired from her about the reason for stopping the payment and he was told that the cheque was not being issued for payment of the money but it was issued only to satisfy him. The complainant thereafter served a notice as required by Section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act ). The accused did not pay the money even after expiry of the period of notice. The accused thus, committed offence under Section 138 of the Act.

( 3 ) THE learned Magistrate after recording the statements under Section 200, Cr. P. C. and 202, Cr. P. C. and perusing the material on record summoned the accused under Section 138 of the Act. The accused filed objection against summoning order mainly on the ground that the allegations contined in the complaint did not make out offence under Section 138 of the Act. The learned Magistrate rejected the objection of the accused. Thereafter a Criminal revision was filed which was dismissed by the learned Addl. Sessions Judge by his judgment and order dated 16-10-1995.

( 4 ) BY the present petition, the petitioner prays for quashing of the orders dated 4-4-1995 summoning the accused, dated 29-7-1995 rejecting of objection by the learned Magistrate and dated 16-10-1995 dismissal of the revision by the learned Addl. Sessions Judge on the ground that no offence is made out from the allegations contained in the complaint.

( 5 ) THE main contention of the learned counsel for the petitioner is that under Section 138 of the Act offence is committed only when the cheque is bounced or returned by the bank unpaid either because of the amount of money standing to the credit of the account of the person issuing the cheque is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account. It is contended that in the instant case ther is no allegation in the complaint that the amount in the account of the petitioner was insufficient to honour the cheque or that the cheque exceeds the amount arranged to be paid from that account of the petitioner. Therefore, no offence under Section 138 of the Act was committed. In support of his contention the learned counsel for the petitioner has relied upon a number of decisions of this Court and some other High Courts. There are, however, two recent decisions of the Honble Supreme Court which have settled the controversy.

( 6 ) THE first decision is reported in AIR 1996 SC 2339 M/s. Electronics Trade and Technology Development Corporation Limited, Secunderabad v. M/s. Indian Technologists and Engineers (Electronics) Pvt. Ltd. In this case the allegations in the complaint were that the accused issued cheque with the promise that the same will be honoured when presented. It was, however, dishonoured with the endorsement "1 referred to drawer, 2 instructions fof stopping payment and 3-stamped exceeds arrangements. " It was evident from the memo of the bank that the said cheque was dishonoured by the bank for want of funds only. It was also alleged in the compalint that the accused with dishonest intention instructed the bank to stop payment and such instruction was given