HIGH COURT OF JAMMU AND KASHMIR AT JAMMU 561-A Cr.P.C No. 94/2005 Cr.M.P.No. 90/2005 Date of Decision: 04.02.2009 ________________________________________________________ M/s. Shri Krishana Trading Co. & ors Vs. M/s. Tawi Food Pvt. Ltd. and anr Coram: MR. JUSTICE J. P. SINGH, JUDGE. Appearing Counsel: For Petitioner : Mr. Sunil Sethi, Advocate. For Respondent : Mr. M. P. Kapoor, Advocate. i) Whether to be reported in Press/Journal/Media : Yes/No ii) Whether to be reported in Digest/Journal : Yes/No Petitioners have filed this petition seeking quashing of proceedings initiated by Judicial Magistrate Ist Class (Sub-Judge), Jammu on respondent’s complaint under Section 138 of the Negotiable Instruments Act, 1881, on the ground that the cheque issued by Krishna Trading Company in favour of Tawi Food Products Private Limited, Jammu for an amount of Rs. 87,000/- had not been so issued to discharge any existing liability and proceedings initiated by learned Judicial Magistrate Ist Class (Sub-Judge), Jammu on M/s. Tawi Food Products Private Limited Jammu’s complaint under Section 138 of the Negotiable Instruments Act alleging closure of 2 account by the petitioners despite issuance of cheque, was an abuse of the process of Court. Petitioners’ counsel Mr. Sethi submitted that the cheque issued by the petitioners had not been so issued to discharge any existing liability and had rather been issued only by way of security to act as respondents’ super-stockists for the goods manufactured by them, so no proceedings on dishonor of cheque presented despite petitioners’ caution to the respondents, not to present it for payment, could in law be initiated on respondents’ complaint, by the Learned Judicial Magistrate. Mr. Kapoor, appearing for the complainant, on the other hand, submitted that in order to settle all the previous accounts, Krishan Kant Garg-petitioner no. 3 had visited Jammu in March, 2001 and after settlement of accounts between the parties up to March 2001, the petitioners had admitted and acknowledged their liability to pay balance amount of Rs.1,37,168/- to the complainant. To discharge the existing liability, the accused had paid Rs. 50,000/- by Bank Draft and for rest of the balance amount, a post dated cheque of Rs. 87,000/- dated 30th September, 2001 had been issued with the request that it be presented for payment after September, 2001. According to the learned counsel, the allegations made by the petitioners in the petition that the cheque had been given by way of security were 3 incorrect and that apart being factual in nature, the allegations could not be adjudicated upon by this Court in exercise of its inherent jurisdiction. Learned counsel submitted that the allegations projected by the petitioners in the petition were in the nature of defence which may be gone into only at appropriate stage contemplated by the Code of Criminal Procedure, during the trial of the complaint. Referring to Modi Cements Ltd. v. Kuchil Kumar Nandi reported as (1998) 3 SCC 249, complainant’s counsel submitted that petitioners’ avoidance of making payment, covered by the cheque, in informing the Bank to stop payment before presentation of cheque would not absolve them of the liability which they had incurred under the provisions of the Negotiable Instruments Act, 1881. I have considered the submissions of learned counsel for the parties and gone through the documents which the petitioners have placed on records. I find substance in Mr. Kapoor’s submission that allegations made by the petitioners in their petition, are disputed questions of fact and are more in the nature of defence which the petitioners may so project at the appropriate stage during the trial of the complaint. Such disputed questions of fact cannot be gone into by this 4 Court while exercising jurisdiction under Section 561-A of the Code of Criminal Procedure. Petitioners’ counsel’s plea that after having informed the respondents not to present the cheque, petitioners’ liability under Section 138 ceases, is not tenable, in view of the law laid down by Hon’ble Supreme Court of India in Modi Cement Limited’s case (supra), where while dealing with the question their Lordships had held as follows:- “18. The aforesaid propositions in both these reported judgments, in our considered view, with great respect are contrary to the spirit and object of Sections 138 and 139 of the Act. If we are to accept this proposition it will make Section 138 a dead letter, for, by giving instructions to the bank to stop payment immediately after issuing a cheque against a debt or liability the drawer can easily get rid of the penal consequences notwithstanding the fact that a deemed offence was committed. Further the following observations in para 6 in Electronics Trade & Technology Development Corpn. Ltd. (SCC p.742) “Section 138 intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a bank and induce the payee or holder in due course to act upon it. Section 138 draws presumption that one commits the offence if he issues the cheque dishonestly” (emphasis supplied) in our opinion, do not also lay down the law correctly. 19. Section 138 of the Act is a penal provision wherein if a person draws a cheque on an account maintained by him with the banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part of any debt or other liability, is returned by the bank unpaid, on the ground either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank, such person shall be deemed to have committed an offence. The distinction between the deeming provision and the 5 presumption is well discernible. To illustrate, if a person draws a cheque with no sufficient funds available to his credit on the date of issue, but makes the arrangement or deposits the amount thereafter before the cheque is put in the bank by the drawee, and the cheque is honoured, in such a situation drawing of presumption of dishonestly on the part of the drawer under Section 138 would not be justified. Section 138 of the Act gets attracted only when the cheque is dishonoured. 20. On a careful reading of Section 138 of the Act, we are unable to subscribe to the view that Section 138 of the Act draws presumption of dishonestly against drawer of the cheque if he without sufficient funds to his credit in his bank account to honour the cheque issues the same and, therefore, this amounts to an offence under Section 138 of the Act. For the reasons stated hereinabove, we are unable to share the views expressed by this Court in the above two cases and we respectfully differ with the same regarding interpretation of Section 138 of the Act to the limited extent as indicated above. 21. It is needless to emphasize that the Court taking cognizance of the complaint under Section 138 of the Act is required to be satisfied as to whether a prima facie case is made out under the said provision. The drawer of the cheque undoubtedly gets an opportunity under Section 139 of the Act to rebut the presumption at the trial. It is for this reason we are of the considered opinion that the complaints of the appellant could not have been dismissed by the High Court at the threshold.” In view of the law laid down by Hon’ble Supreme Court of India in the judgment (supra) and the above discussion, I do not find any ground to exercise jurisdiction under Section 561-A to quash the proceedings initiated against the petitioners on respondents’ complaint. There is no merit in this petition which is, accordingly, dismissed. (J. P. Singh) Judge Jammu 04.02.2009. Tilak, Secy.