JUDGMENT [ENTITY], J.
1. This petition for quashing of complaint against the petitioner under [SECTION] of the [ACT] (hereinafter referred to as "the Act") is pending adjudication since 2003.
2. Respondent-M G F (India) Limited filed a complaint against the petitioner alleging that five cheques issued by the petitioner to discharge his liability due to hire-purchase agreement were not encashed when presented. It is seen that amount was payable by the petitioner in three years in equated monthly instalment of Rs. 8644/-. The petitioner had issued post dated cheques for the said purpose. The petitioner had issued three cheques in advance payable in July 1997, July 1998 and July 1999. These were meant for insurance of the vehicle. In July 1998, the petitioner demanded insurance policy from the respondent but it did not reply properly. It is further disclosed that the petitioner-itself had got this vehicle insured.
3. Without disclosing these facts and the background, the respondent filed a complaint against the petitioner due to dishonour the cheque, when presented. It is further disclosed that the petitioner had sufficient balance on the day when these cheques were presented for payment but the same were not honoured on account of the instructions of "stop payment" issued by the petitioner. The petitioner when summoned, filed an application for discharge but the same was not decided due to non-appearance of the respondent- complainant. Alleging that this complaint was filed only to harass the petitioner, this petition is filed for quashing of the complaint and the subsequent proceedings.
4. Notice of this case was issued on 21.4.2003. Since then the case is pending adjudication before this Court. Request for an adjournment is also made on the ground that reply has not been filed. The case can be heard without awaiting the reply as the question involved is a pure question of law which otherwise seems to be well settled.
5. The sole contention raised by counsel for the petitioner is that provisions of [SECTION] of the Act would not be attracted in this case as the cheques were not returned unpaid on account of "insufficiency of funds". In fact, these cheques were not encashed due to stop payment instructions issued by the petitioner. This, as per the counsel, would not attract the offences under [SECTION] of the Act. In support, counsel would refer the case of [PRECEDENT] . This was a case where post dated cheques were issued and the bank was instructed not to make payment. This fact was made known to the drawee who still presented the cheques. Under these circumstances, it was held that offence under [SECTION] of the Act would not be made out. This observation in [PRECEDENT]'s case (supra) was made by making reference to some observations made in
6. [PRECEDENT], which reads as under:
After the cheque is issued to the payee or to the holder in due course and before it is presented for encashment, notice is issued to him not to presents the same for encashment and yet the payee or holder in due course present the cheque to the bank for payment and when it is returned on instruction, [SECTION] does not get attracted.
7. It may need a notice that the decision rendered in [PRECEDENT]'s case (supra) was over-ruled by the Hon'ble Supreme Court in the case of [PRECEDENT]. This view was reiterated by the Hon'ble Supreme Court in [ENTITY] v. Surendra Madhavrao Nighojakar 2001(2) RCR (Cri.) 165 (SC). In a latest decision reported as [PRECEDENT], the Hon'ble Supreme Court has reiterated the law laid down in Modi Cements Ltd. and [ENTITY]'s cases (supra). Reference has also been made to [SECTION] of the Act, which creates a presumption in favour of the holder of a cheque. It has, thus, to be presumed that a cheque is issued in a discharge of any debt or other liability. As observed by the Hon'ble Supreme Court, this presumption can be rebutted by adducing evidence and burden would be on a person who wants to rebut the same. The Supreme Court in the case of [PRECEDENT] (supra) went on to hold that a contrary view would render [SECTION] a dead letter and will provide a handle to persons trying to avoid payment under legal obligations undertaken by them through their own acts which in other words can be said to be taking advantage of one's own wrong. The Court further observed "if we hold otherwise, by giving instructions to banks to stop payment of a cheque after issuing the same against a debt or liability, a drawer will easily avoid penal consequences under [SECTION]. Once a cheque is issued by a drawer, a presumption under [SECTION] must follow and merely because the drawer issued notice to the drawee (sic) or to the bank for stoppage of payment it will not preclude an action under [SECTION] of the Act by the drawer or the holder of the cheque in due course." Even in [PRECEDENT], the Hon'ble Supreme Court held that [SECTION] of the Act would be attracted even in those cases where account was closed and the cheque was dis-honoured with such a remark. The argument that the penal provisions of [SECTION] of the Act should invite strict interpretation and as such, be made to apply to two situations i.e. either because the money standing to the credit of the account of the drawer is insufficient to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with the bank was rejected. The observation made by the Hon'ble Supreme Court while rejecting the said contention would be of advantage to notice here:
If the interpretation, which is sought for, were given, then it would only encourage dishonest persons to issue cheques and before presentation of the cheques, close the account and thereby escape from the penal consequences of [SECTION]." Any interpretation which withdraws the life and blood of the provision and makes it ineffective and a dead letter, should be averted. It is the duty of the court to interpret the provision consistent with the legislative intent and purpose so as to suppress the mischief and advance the remedy.
8. It can not be said that `stop payment' instruction leading to dishonour of the cheques initially is enough to take the delinquent out of the purview of [SECTION] of the Act. This view, if accepted in the manner as projected, can lead to making the provisions of [SECTION] of the Act redundant because one would always be in a position to issue such instructions after issuing a cheque in each case. In any event, this issue is fully settled as noticed in various judgments of the Hon'ble Supreme, which are referred to above. No further discussion on this issue, as such, is needed.
9. Accordingly, I am of the view that the present complaint and the subsequent proceedings can not be ordered to be quashed while exercising powers under [SECTION] [ACT] on the ground as pleaded.
10. The petition is accordingly dismissed.