COURT NO.2 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 808 of 2005 (Under Section 482 of Cr.P.C.) Ashish Dwivedi …….Applicant Versus State of Uttaranchal & Other …….Respondents Sri Rajesh Mahale, learned Counsel for the applicant. Sri S.S. Adhikari, learned Additional G.A. for the State/respondent no. 1. Sri Pankaj Miglani, learned Counsel for the respondent no. 2. 29th September, 2008 Hon’ble P.C. Verma, J. Present application under Section 482 of the Cr.P.C. is directed against the summoning order dated 11.12.2003 by which the applicant has been required to appear before the Special Judicial Magistrate, Haridwar in criminal case no. 561 of 2003, Sudesh Kumar v. Ashish Dwivedi & Other under Section 138 of the Negotiable Instruments Act. 2. Applicant Ashish Dwivedi has made a prayer to quash the summoning order dated 11.12.2003 as well as the proceedings of the aforesaid criminal case no. 561 of 2003, Sudesh Kumar v. Ashish Dwivedi & Other under Section 138 of the Negotiable Instruments Act pending in the Court of Special Judicial Magistrate, Haridwar. 2 3. A complaint case was filed by Sri Sudesh Kumar/respondent no. 2 against the applicant Ashish Dwivedi under Section 138 of the Negotiable Instruments Act on the allegation that a cheque bearing no. ‘679856’ dated 1.6.2002 drawn at Indian Overseas Bank, Kankhal Branch was issued to the complainant by the applicant for payment of Rs. 3 lakhs towards the consideration of the sale deed executed on 26.2.2002. The aforesaid cheque dated 1.6.2002 was presented by the complainant on 27.6.2002 and was returned by the bank on 28.6.2002 with the endorsement of “Stop Payment”. This cheque was again presented on 13.7.2002 and it was returned on 15.7.2002 with the same endorsement. Then a complaint case was filed by the complainant/respondent no. 2. 4. The endorsement made by the bank shows that the applicant had issued an instruction of ‘Stop Payment’ on the demand on submission of the aforesaid cheque. Provisions of Section 138 of the Negotiable Instruments Act are attracted only in case when the amount of money standing to the credit of that account is insufficient to honour the cheque or when it exceeds the amount arranged to be paid from that account by an agreement made with that bank and only then such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both. The contingency that, despite the aforesaid two conditions being fulfilled in the account, if the payment is not made by the bank on submission of the cheque on account of ‘Stop Payment’ 3 instruction by the account holder who has drawn the cheque, is not covered under Section 138 of the Negotiable Instruments Act. This contingency arises only when some dispute relating to agreed payment arises after issuance of the cheque between the parties and in order to settle such dispute, ‘Stop Payment’ instruction is issued by the drawer of the cheque to the bank. 5. In the present case, the dispute between the parties is that as to whether the amount payable by the applicant to the complainant is related to the same sale deed or is related to some other transaction. According to the applicant, the transaction in question is related to execution of another sale deed in respect of another plot which was not agreed to be executed by the applicant. The amount towards the consideration shown in the sale deed has already been paid. Therefore, the ‘Stop Payment’ instruction was made. According to the complainant, the consideration of amount towards the sale deed was not paid and this cheque was relating to the amount towards that sale consideration. 6. This dispute can be decided only on the basis of evidence in a suit filed by the parties, which is purely of civil nature. Since the cheque was not honoured on account of ‘Stop Payment’ instruction by the applicant, which contingency is not covered under Section 138 of the Negotiable Instruments Act, which provides only two contingencies when the offence shall be made out, firstly, the insufficient balance in the account and, secondly, when the cheque exceeds the amount arranged to be paid from that account by an agreement made with the bank. Thus, no offence is made out against the applicant under 4 Section 138 of the Negotiable Instruments Act. Accordingly, the proceedings of criminal case no. 561 of 2003 are liable to be quashed and are hereby quashed. Application under Section 482 of the Cr.P.C. is allowed. (P.C. Verma, J.) 29.9.2008 Prabodh