A cheque cannot be presented for the entire amount if part payment was made prior to its issuance, unless such payment is endorsed on the cheque.

JUDGMENT :

Arun Kumar Singh Deshwal, J.

1. Supplementary affidavit filed today is taken on record.

2. Heard Sri Rajneesh Kumar Singh, learned counsel for the applicants, Sri Rajeev Kumar Singh, learned A.G.A for the State and perused the record.

3. The instant application under Section 482 Cr.P.C. has been filed for quashing the summoning order dated 02.01.2021 passed by Presiding Officer, Additional Court No.2, Agra as well as entire proceeding of Complaint Case No.828 of 2020, under Section 138 N.I. Act, Police Station- Hariparvat, District Agra pending in the court of Additional Court no.2, Agra.

4. Contention of learned counsel for the applicant is that the applicant and opposite party no.2 have entered into business relationship and it is admitted fact that during the course of business relationship, the opposite party no.2 had invested Rs.41,50,000/- in the business of the applicant. It is further submitted that the applicant had given two cheques of total amount of Rs. 41,50,000/- as security to the opposite party no.2 and subsequently applicant has paid Rs.37,47,900/- through RTGS as well as other modes of transaction to the opposite party no.2 but opposite party no.2 misused those cheques and initiated the impugned proceeding. It is further submitted that in the complaint it is admitted that the applicant had paid Rs.28,86,459/- in the year 2018 itself. Therefore, part payment towards the cheque of Rs. 41,51,000/- has already been made by the applicant, therefore, in view of law laid down by the Apex Court in the case of Dashrathbhai Trikambhai Patel vs Hitesh Mahendrabhai Patel; (2023) 1 SCC 578 cheque in question cannot be presented to recover the entire cheque amount.

5. Per contra, learned AGA for the State has opposed the prayer and submitted that the ground raised by the applicant is his defence, which cannot be considered at this stage, therefore, the present application is liable to be dismissed.

6. After hearing the submission of learned counsel for the parties and perusal of record, it appears that it is not in dispute that two cheques in question of amount of Rs.41,50,000/- have been issued by the applicant to the opposite party no.2. From perusal of the complaint, it also appears that out of two cheques in question, one cheque bearing No. 001253 of Rs.15,00,000 is date of 01.07.2020 while another cheque No.001465 of Rs.26,50,000/- is of date 10.08.2020 and as per Section 118(b) of N.I. Act date mentioned in the cheque will itself be deemed to be date of issuance of cheque. Therefore, both the cheque in question will be deemed to be issued in the year 2020 and contention of counsel for the applicant that he had paid Rs.37,47,900/- from 15.01.2018 to 21.07.2019 itself shows that amount was paid prior to issuance of cheque. The Apex Court in the case of Dashrathbhai Trikambhai Patel (Supra) has observed that if part payment is made after issuance of cheque between the period cheque is drawn and when it is encashed upon the maturity, then the legally enforceable debt on the date of maturity would not be the sum represented on the cheque unless part payment is endorsed on the cheque itself. Paras 33 and 34 of the Dashrathbhai Trikambhai Patel (supra) case is reproduced hereinbelow:

"33. Under Section 56 read with Section 15 of the Act, an endorsement may be made by recording the part-payment of the debt in the cheque or in a note appended to the cheque. When such an endorsement is made, the instrument could still be used to negotiate the balance amount. If the endorsed cheque when presented for encashment of the balance amount is dishonoured, then the drawee can take recourse to the provisions of Section 138. Thus, when a part-payment of the debt is made after the cheque was drawn but before the cheque is encashed, such payment must be endorsed on the cheque under Section 56 of the Act. The cheque cannot be presented for encashment without recording the part-payment. If the unendorsed cheque is dishonoured on presentat