M/s. Shirdi Overseas Imports and Exports and another Vs M/s. Serve Overseas and another

Ranjit Singh, J.@mdashThrough this petition, quashing of complaint (Annexure P- 4), bearing No. 308/2 dated 29.5.2003, u/s 138 of the Negotiable Instruments Act, 1881 (hereinafter called `the Act''), summoning order dated 10.7.2003 (Annexure P-5) and the subsequent proceedings has been sought. The above-noted complaint was filed against the petitioners when a cheque bearing No. 255423 dated 22.10.2002 for an amount of Rs. 8,00,000/- issued in the name of respondent-firm was dishonoured. It is evident from the petition that this cheque was given in advance to the respondent-firm against the supply of goods, yet to be made. It is further disclosed that deal for supply of Acrylic Tow had been finalised between the petitioner concern and the respondent-firm for which this cheque has been issued. It is then mentioned that despite repeated requests, the respondent- firm deliberately did not supply the goods. It is claimed that the respondent-firm had failed to supply the goods and as such the petitioner concern had duly informed the respondents that the deal/transaction between them stood cancelled and payment in regard to the said cheque was stopped. Still the respondent-firm with mala fide intention had presented this cheque for encashment on 21.4.2003, which was the last day of its expiry. When the petitioner-firm learnt about the same, then a letter was sent to the Bank requesting them to stop payment of the cheque. The cheque accordingly was dishonoured, leading to filing of the complaint and the subsequent proceedings. Through the present petition, summoning of the petitioners has been challenged on the ground that complaint is absurd, vexatious and totally mala fide and thus is an abuse of process of law. Notice was issued in this case and the reply has been filed by the respondents.

I have heard the counsels for the parties.

2. Counsel for the petitioners has based his submission mainly on one ground and it is the non-supply of the material by the respondent-firm, which, as per counsel, would justify the action of the petitioner concern in stopping the payment of this cheque. Drawing my attention to the averments contained in paragraph 3(iv) of the petition, the counsel would contend that it has specifically been averred that the respondent-firm had not supplied the goods, but was claiming the payment and as such there was no liability which the petitioners were required to discharge. In support of his argument, the counsel has sought to reply upon a decision of the Hon''ble Supreme Court in M.S. Narayana Menon @ Mani Vs. State of Kerala and Another, . The counsel has referred to paragraph 30 of this judgment, wherein the Hon''ble Supreme Court had applied the definition of "proved" and "disproved" to Section 118(a) of the Negotiable Instruments Act. From this, the counsel would seek to contend that the Court is to presume that a negotiable instrument is to be for a consideration unless and until after considering the matter before it, the Court either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. Referring to the judgment the counsel submits that for rebutting such a presumption, what is needed is to raise a probable defence and for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. The counsel for the respondents, however, has controverted the submissions made on behalf of the petitioners and prayed for dismissal of the present petition.

3. It cannot be denied that supply or non-supply of the goods for which this cheque was allegedly issued is a matter of fact and is required to be proved before a Court of law. The counsel for the petitioners, referring to the averments as noticed above, has very strenuously contended that the payment in this case was stopped because of non-supply of the goods, agreed to be supplied. On the other hand, counsel for the respondents has drawn my attention to the averments in the reply, whereby this fact had been specifically denied. In the reply it is positively averred that the answering respondent had supplied the material against Bill No. 156 dated 22.10.2002.

4. I have not been able to appreciate as to how on this ground, the petitioners could seek quashing of this complaint. It is a pure question of fact to see if the goods in this case had been supplied or not. That will have to be proved before a trial Court. It would also require to be proved that this cheque had indeed been issued in advance for supply of goods, which had been agreed to. In short, basically the parties would be required to prove if this cheque had been issued for discharging any liability. Action in seeking quashing of a complaint on the ground that consideration being not shown for issuing cheque, the complaint is to be quashed by looking into the definition of "proved" and "disproved", as would be applicable to offence u/s 138 of the Act, in the light of contents of Section 118(a) of the Act, is really not understood. All these matters cannot be gone into while exercising jurisdiction u/s 482 Cr.P.C. It is no body''s case that definition of "proved" and "disproved" etc. would not be attracted in the cases of offences u/s 138 of the Act, but this consideration would also arise only before trial Court while deciding the case on the basis of evidence. Frankly, I have not been able to appreciate how in the absence of evidence one can assume or presume that the cheque was or was not for any consideration. When pointed out to the counsel for the petitioners that the observations of the Hon''ble Supreme Court were recorded in a case, which had been decided after the trial and that how could such observations be applied to while exercising jurisdiction u/s 482 Cr.P.C., the counsel could not give any meaningful answer. Even otherwise in I.C.D.S. Ltd. Vs. Beena Shabeer and Another, , the Hon''ble Supreme Court has held that the commencement of the section starts with the words "Where any cheque". The abovenoted three words are of extreme significance, in particular, by reason of the use of the word "any" in the first three words suggest that in fact for whatever may be the reason if a cheque is drawn on an account maintained with a banker in favour of another person for the discharge of any debt or other liability and it is dishonoured it would attract the penal provisions of Section 138-A of the Negotiable Instruments Act. The section when read with the first three words at the commencement thereof, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the cheque is returned by the banker unpaid.

Accordingly, no case is made out for quashing the complaint and the petition is accordingly dismissed.

At this stage, the counsel for the petitioners has made a request for exempting the personal appearance of the petitioners. Liberty is granted to the petitioners to move an application seeking exemption from personal appearance before the trial Court. The trial Court would consider and grant such a prayer, if moved, on conditions considered appropriate. Except for these observations, the present petition is dismissed.