- (1.) Leave granted.
(2.) We have heard the counsel on both sides.
(3.) The appellant laid the complaints under Section 138 of the Negotiable Instrument Act, 1881 (for short, 'the Act') for dishonour of cheque for insufficiency of the funds in the accounts of the accused. The complaint of the appellant read thus: "The above cheque was presented by the complainant on 28-1-1990, through their Bankers M/s. Hyderabad Bank, Sarojini Devi Road, Secunderabad for realisation, with the promise by the accused, that the same will be honoured when presented. However, the said cheque was dishonoured with the Banker's endorsement dated 29-11-1990. "1 referred to drawer, 2. instructions for stopping payment and 3 stamped exceeds arrangements". It is evident from the Banker's memo dated 29-11-1990 that the said cheque was dishonoured by the Bank for want of funds only. On receipt of the intimation dated 29-11-1990 from the Bank, the complaint has issued a notice on 6-12-1990 to the accused by Registered Post Acknowledgment Due, informing him that the cheque dated 30-6-1990 was dishonoured by their bankers and demanded payment within 15 days from the date of receipt of the said notice . The said notice was received and acknowledged by the accused. No payment has been made by the accused as required under Section 138 (C) of the Negotiable Instruments Act. The accused 2 also stood as a guarantor to the payment of the complainant, as the proprietor of M/s. V. V. Rama Rao and Co., Saleemnagar Colony, Hyderabad. The accused 2 has issued the cheque knowing fully well that he has no Bank balance to their credit and he cannot honour the cheque for want of funds alone. He has not taken any steps to honour the cheque and arrange payment as required under Section 138 (C) of the Negotiable Instruments Act. The accused has thereby committed the offence under Section 138 of the Negotiable Instruments Act. The dishonest intention of the accused in instructing the Bank to stop payment is evident from the conduct of the accused. He has instructed their Bank to stop payment only with the mala fide intention of escaping from the liability under Section 138 of the Negotiable Instruments Act. He has so instructed their Bank so he has no funds to their credit. Hence the accused is liable for the offence under Section 138 of the Negotiable Instruments Act". ;