Point of Law: Criminal Complaint confirmed - Dishonoured of Cheque - If a cheque is dishonored because of stop payment instruction, even then offence punishable under Section 138 of N.I. Act gets attracted.

JUDGMENT :

VIVEK AGARWAL, J.

1. Sri. Amit Daga, learned counsel for the applicant and learned AGA for the State.

2. Learned counsel for the applicant submits that the applicant is seeking quashing of the criminal complaint dated 08.04.2019 as well as entire proceedings registered in its pursuance as Criminal Complaint Case No. 927 of 2019 (Brajendra Kumar Vyas vs. Naveen Saxena) under Section 138 of NI Act, Police Station Sipra Bazar, District Jhansi, including summoning order dated 15.02.2021 passed by the learned Chief Judicial Magistrate, Court No. 2, Jhansi.

3. Grounds which have been put forth by learned counsel for the applicant to assail the impugned order are that applicant has been falsely implicated in a case of cheque bounce. It is submitted that the applicant had lost a cheque bearing no. 740500 issued by Dena Bank, Jhansi on account of applicant’s account no. 114010001415, which had slipped out of his pocket, though it was signed but blank alongwith a hundred rupee stamp paper bearing no. DA-498435 dated 21.12.2016. Applicant had lodged a report with the SSP, Jhansi by sending him an application through registered post on 06.12.2017, copy of complaint is enclosed as annexure no. 8 to the application. It is submitted that thereafter a certificate was issued by the Branch Manager of Dena Bank on 29.11.2018 to the affect that on 01.11.2017 on request so made by the applicant to stop payment of cheque no. 740500 (annexure no. 6) was noted. It is submitted that on 09.02.2018 intimation in this regard of loss of cheque was published in Daily News Paper, copy of which has been enclosed as annexure no. 9 to the application, for which Amar Ujala Publications Limited issued a receipt on 07.02.2018. It is further submitted that applicant had obtained a certificate from the office of the Senior Post Master, Jhansi that registered article sent on 06.12.2017 and addressed to SSP, Jhansi was delivered on 07.12.2017. This certificate was issued in pursuance to the complaint made by the present applicant on 20.02.2019.

4. It is further submitted that the complainant lodged a complaint by misappropriating a lost cheque and filled huge sum of Rs. 80,00,000/- in the name of money transaction made earlier whereas according to the applicant, there was no occasion for such huge transaction and never ever any such amounts as have been claimed by the complainant were transferred to his account and, therefore, on this ground also, complaint is liable to be quashed.

5. Learned counsel for the applicant has placed reliance on the judgment of Karnataka High Court in case of Amzad Pasha vs. H.N. Lakshmana, 2011 Cri. L.J. 552, wherein it is held that when complainant has not placed any evidence to show that he had financial capacity to lend substantial amount of Rs. 4,50,000/- and admittedly when no document evidencing the loan transaction has come into existence, then case of the complainant becomes highly improbable and not acceptable. It has been held that when none of the witnesses, in the presence of whom, loan was paid by the complainant were examined, then adverse inference can be drawn against the complainant and accused is liable to be acquitted.

6. Reliance is also placed on the judgment of Supreme Court in case of Raj Kumar Khurana vs. State of (NCT of Delhi) and Another, (2009) 6 SCC 72, wherein it is held that if cheque is returned by Bank on ground, then report of loss of cheque was filed by drawer, then Section 138 of N.I. Act, is not attracted. It is submitted that a complaint under Section 138 of N.I. Act will be maintainable only when cheque is returned by the bank unpaid. Such non-payment made either be: (i) because of the amount of money standing to the credit of that amount is insufficient to honor the cheque, or (ii) it exceeds the amount arranged to be paid from that account by an agreement made with that bank.

7. Applicant has also placed reliance on the judgment of Coordinate Bench of this High Court dated 22.01.2020 passed in