A cheque issued as an advance payment does not constitute a legally enforceable debt under Section 138 of the Negotiable Instruments Act, leading to quashing of the proceedings.

JUDGMENT :

Manju Rani Chauhan, J.

1. Heard Mr. Sanjeev Singh assisted by Mr. Ramesh Kumar Singh and Mr. Ashok Kumar Singh, learned counsels for the applicant, Mr. Ram Sharan Singh/applicant appearing in person, Mr. Vikas Singh, learned counsel for opposite party no.2 as well as Mr. Amit Singh Chauhan and Mr. Mayank Awasthi, learned counsels for the State.

2. This application u/s 482 has been filed by the applicant with the prayer to quash the entire proceedings of Complaint Case No.1738/2020, under Section 138 of Negotiable Instrument Act (Alok Singh Niranjan vs. Ram Sharan Singh) as well as quash the summoning order dated 13.01.2021 issued by the Chief Judicial Magistrate, Jalaun, Police Station- Kotwali Orai, District- Jalaun, pending in the Court of Judicial Magistrate, Jalaun.

3. Brief facts of the case are that the opposite party no.2 filed a complaint under Section 138 Negotiable Instruments Act, 1881 (hereinafter referred to as the Act) on 03.08.2020 against the applicant stating therein that the opposite party no.2 is working as Assistant Teacher at Janta Vidya Mandir Inter College, Orai-Jalaun. The Manager of the aforesaid is Dilip Kumar Singh, who is real brother-in-law (Saadhu Bhai) of the applicant. Due to the good relations between the two, they used to have money transactions with each other. It has been further alleged that on 25^th September, 2016, the applicant requested for 10 to 15 lakh rupees from opposite party no.2 as he wanted to purchase a plot at Allahabad. The applicant requested the opposite party no.2 to make arrangements for the money, for which he was ready to pay interest also. It has been further alleged that as relations between the two were good and they had maintained honest relationship of money transactions with each other, therefore, opposite party no.2 requested the applicant to come to his house to take the money on 02.10.2016, hence the applicant on the same date i.e. 02.10.2016, reached the residence of opposite party no.2 at about 4:00 pm and took the money. Rs.12,25,000/- were paid to the applicant in the presence of one Vinod Kumar Srivastava son of Shiv Shankar Srivastava and one Hamir Singh son of Sri Ratan Singh both residents of Jalaun. The applicant had promised to return the amount in January, 2017 but he did not do so, taking an excuse that he could not purchase the plot due to demonetization (note bandi) on 08.11.2016. Since then, the applicant is taking some or the other excuse for not returning the money. When the opposite party no.2 exerted pressure by stating that he will take legal recourse in case the applicant did not return the money, the applicant promised to make some arrangements to return the money.

4. On 19.03.2020, the applicant reached the residence of opposite party no.2 and gave a cheque bearing “Cheque No.390917” issued from SBI, Branch High Court Allahabad at Allahabad of Rs.11,00,000/- which was presented by the opposite party no.2 at Allahabad Bank, Orai to be deposited in the Account No.00000020222722742. The aforesaid cheque was returned with an information “insufficient fund” on 21.04.2020.

5. After coming to know about the dishonor of the aforesaid cheque, the applicant informed the opposite party no.2 that he will return the money after lockdown due to COVID-19 and requested him to present the cheque on 15.06.2020. As requested by the applicant, the opposite party no.2 presented the cheque on 15.06.2020 and the same was again returned on 16.06.2020 with an information that there was “insufficient fund”. The applicant was well aware of the fact that there was insufficient fund in his account, however he had asked the opposite party no.2 to present the cheque again with a planned manner having no intention to return the money.

6. A legal notice was sent through registered post on 24.06.2020 and the same was received by the applicant on 08.07.2020, however no money was returned, therefore, the present complaint was filed. The affidavit in the aforesaid compla