Sandeep Mehta, J. - (1.) THE instant miscellaneous petition has been filed by the petitioner complainant against the order dt 13.01.2010 passed by the learned Sessions Judge, Merta whereby the Revisional Court quashed the order dt. 09.04.2008 passed by the Judicial Magistrate, Degana taking cognizance against the respondent for the offence under Sec. 138 of the Negotiable Instruments Act. Learned counsel for the petitioner submits that the revisional Court exercised jurisdiction erroneously and has interfered in the well reasoned order taking cognizance passed by the learned Magistrate which was based on the material available on record. Learned counsel submits that the petitioner filed a complaint against the respondent No. 2 under Sec. 138 of the N.I. Act with the allegation that a cheque of Rs. 9 lacs issued by the accused to the petitioner bounced on presentation. Learned counsel submits that after following due procedure for issuance of notice etc., the petitioner submitted a complaint and filed an affidavit in support of the complaint. Thereafter pre -cognizance statement of the petitioner was recorded and the learned Magistrate on the basis of said material issued process against the accused for valid and justifiable reason. Learned counsel submits that the learned Revisional Court has interfered in the well reasoned order taking cognizance by exercising jurisdiction as if it was finally deciding the criminal trial. Learned counsel submits that the ground which has been utilized by the Revisional Court for reversing the order taking cognizance is absolutely erroneous and contrary to the decision of the Apex Court in the case of Modi Cements Ltd. vs. Kuchil Kumar Nandi, reported in : AIR 1998 SC 1057.
(2.) PER contra Ms. Deepika Vyas, learned counsel for the respondent No. 2 submits that the Revisional Court has justly exercised jurisdiction for quashing the cognizance order. Learned counsel submits that the payment of cheque was stopped by the respondent will in advance, therefore, it cannot be said that offence under Sec. 138 of the N.I. Act was made out against the respondent. After giving thoughtful consideration to the arguments advanced at the bar and after going through the order passed by the Courts below, it is apparent from the record that the Revisional Court's order is absolutely illegal and perverse. The two grounds whereupon the Revisional Court has relied for interfering in the order taking cognizance are without any basis whatsoever. The amendment in the N.I. Act permits filing of an affidavit along with the complaint and such affidavit can be treated to be the examination in chief of the complainant. In the present case not only the affidavit has been filed but the complainant has also examined himself in support of the complaint before process was issued. Thus, the first ground utilized by the learned Revisional Court for quashing the order taking cognizance was without any basis. The second ground which has been utilized by the learned Revisional Court for interfering in the order issuing process is that the payment of cheque was withheld because of the instruction to stop payment being issued by the accused. The Apex Court in the case of Modi Cements Ltd. vs. Kuchil Kumar Nandi reported in : AIR SC -1057 has held as below: - We see great force in the above submission because once the cheque is issued by the drawer a presumption under Sec. 139 must follow and merely because the drawer issues a notice to the drawee or to the Bank for stoppage of the payment it will not preclude an action under Sec. 138 of the Act by the drawee or the holder of a cheque in due course. The object of Chapter XVII, which is intituled as "OF PENALTIES IN CASE OF DISHONOUR OF CENTAIN CHEQUES FOR INSUFFICIENCY OF FUNDS IN THE ACCOUNTS" and contains Sections 138 to 142, is to promote the efficacy of banking operations and to ensure credibility in transacting business through cheques. It is for this reason we are of the considered view that the observations of this Court in Electronics Trade & Technology Development Corporation Ltd., Secunderabad, ( : 1996 AIR SCW 840) (supra) in paragraph 6 to the effect "Suppose 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 present the same for encashment and yet the payee or holder in due course presents the cheque to the bank for payment and when it is returned on instructions. Section 138 does not get attracted", does not fit in with the object and purpose for which the above chapter has been brought on the Statute Book. 17. The above view has been referred to in K.K. Sidharthan, ( : 1996 (6) SCC (supra) as is clear from Paras 5 and 6 of the judgment. Paras 5 and 6 read as under: - 5. The above apart, through in the aforesaid case this Court held that even "stop payment" instruction would attract the mischief of Section 138, it has been observed in para 6, that if "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 present 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 138 does not get attracted. 6. From the facts mentioned above, we are satisfied that in the present case cheques were presented after the appellant had directed its bank to "stop payment". We have said so because though it has been averred in the complaint that the cheque dt. 10.10.1994 was presented for collection on that date itself through the bank of the respondent which is Catholic Syrian Bank Ltd., from the aforesaid letter of the Indian overseas Branch, we find that the cheque was presented on 15.10.1994 (in clearing). The lawyer's notice to the respondent being of 4th October, which had been replied on 12th from Cochi, which is the place of the respondent, whereas the Advocate who issued notice on behalf of the appellant was at Thrissur, it would seem to us that the first cheque had even been presented after the instruction of "stop payment" issued by the appellant had become know to the respondent. With the above observations, the complaint under Sec. 138 of the Act was quashed. (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 and 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 Corporation Ltd, Secunderabad, ( : 1996 AIR SCW -840) (supra. "....Section 138 of the Act 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 dress presumption that one commits the offence if he issues the cheque dishonestly" 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 draw 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 honor the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence. The distinction between the deeming provision and the 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 but in the bank by the drawee, and the cheque is honored, in such a situation drawing of presumption of dishonesty on the part of the drawer under Sec. 138 would not be justified. Section 138 of the Act gets attracted only when the cheque is dishonored. (20) On 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 dishonesty against drawer of the cheque if he without sufficient funds to his credit in his bank account to honor the cheque issues the same and, therefore, amounts to an offence under Sec. 138 of the Act. For the reasons stated hereinabove, we are unable to share the view expressed by this Court in the above two cases and we respectfully differ with the same regarding interpretation of Section 138 of the limited extent as indicated above.
(3.) THUS , it is apparent that both the points of law whereupon the Revisional Court's order is based have been decided contrary to the correct position of law. Thus, the miscellaneous petition deserves to be accepted and is hereby allowed. The order passed by the learned Sessions Judge, Merta dt. 13.01.2010 is set aside and the order dt. 09.04.2008 passed by the learned Judicial Magistrate. Degana is restored. The parties shall appear before the trial Court on or before 15.02.2013 whereafter the trial Court shall proceed and decide the case expeditiously in accordance with law. Record be sent back forthwith.;