Binary Systems P. Ltd. and Another vs Nobel Power Pvt. Ltd. Madras-4

Pratap Singh, J.—The accused 1 and 2 in C.C. No. 8697 of 1990 on the file of XVII Metropolitan Magistrate, Saidapet, Madras have filed

this petition u/s 482 Criminal Procedure Code praying to call for the records in the aforesaid C.C.8697/90 and quash the same.

The respondent has filed the private complaint against the petitioners herein, arraying them as accused 1 and 2 u/s 138 Negotiable Instruments

Act. The allegations in it are briefly as follows:

The first accused is a registered company. The second accused is carrying on business as Chairman and Director of the first accused company.

Towards supply of computer related electronic items by them to the accused a cheque for Rs. 25,900/-, dated 31.7.90 was issued by the first

accused company in favour of the complainant. It was signed by the accused No.2 and another Director. It was returned to the complainant with

an endorsement ""exceeds arrangement"" on 17.8.90 on the same day, the complainant wrote to the first accused giving information about the

dishonour of the cheque. The accused sent a reply on 22.8.90. On 30.8.90, the Marketing Director of the complainant company called on the

second accused. The second accused informed the Marketing Director of the complainant that cheque may be represented after 10 days and he

would provide funds for payment of the cheque amount. The complainant re-presented the cheque on 14.9.90. On 25.9.90, the cheque was

returned with endorsement ""stop payment"". The complainant sent letter to the accused informing the return of the cheque and demanding payment.

The accused had received that letter but had not paid the amount. On both occasions, when the cheque was returned, it was due to the fact that

sufficient funds were not available. Hence the complaint.

Mr. R. Muthukrishnan, the learned counsel appeared for the petitioner would contend that the complaint is time barred. He contended that the

cheque was returned on 17.8.90 and notice of dishonour was sent by the complainant to the accused and accused had replied on 22.8.90 and the

complaint was Filed on 29.10.90 and in between 22.8.90 and 29.10.90 more than two months have elapsed and that only 15 days time is to be

given for payment of the amount due under the dishonoured cheque and if that payment was not made, the complaint should be filed within a month

therefrom and in this case, the complaint was filed beyond that period and hence barred by time. This argument is totally oblivious of the fact that

the dishonour of the cheque on 17.8.90 is not made the subject matter of the complaint. According to the complaint, on the request made by the

second accused, the cheque was re-presented for collection on 14.9.90 and it was dishonoured and returned with endorsement ''stop payment'' on

25.9.90. This presentation of the cheque on 4.9.90 was within six months from the date of issue of the cheque viz., 31.7.90. After the cheque was

returned, the complainant had sent a notice and there was a reply and no payment was made on the dishonoured cheque and then the complaint

was Laid on 29.10.90. The complainant had sent notice of demand on 25.9.90, as per the allegations made in the complaint. Though the date of

receipt of the notice by the accused is not mentioned, the period between 25.9.90 to 29.10.90 is 34 days. At any time, after the expiry of 15 days

of receipt of notice, but within a month thereof the complaint has been Laid. Hence the complaint is prima facie in time.

The learned counsel further contended that the cheques returned with an endorsement ''stop payment'' and it was not returned due to

insufficiency of funds because it exceeds the amount arranged to be paid and hence offence u/s 138 of Negotiable Instruments Act was not

committed.

On the latter occasion, the cheque has been returned with the endorsement ''stop payment''. The complainant submit that the accused have acted

diabolically. On both the occasions, when the cheque reached the accused''s bank in Bangalore for collection sufficient funds were not available

resulting in the dishonour of the cheque.

Those are the positive allegations in the complaint to the effect that only due to the insufficiency of funds the cheque was returned but diabolically

the accused had acted and the cheque was returned with the endorsement ''stop payment''. So it is to be seen only during the course of trial

whether the cheque was returned unpaid due to the insufficiency of funds as alleged in para 4 of the complaint or otherwise and when there are

positive allegations to the effect in the complaint that cheque was returned due to insufficiency of funds, those allegations cannot be ignored and the

complaint quashed at the threshold. For those allegations are true or not can be tested only during trial. That stage has not yet come.

In view of the above, the petition does not deserve admission and is dismissed.