Gopal Krishan and Another vs Rameshwar Dass

V.K. Bali, J.—Gopal Krishan and his wife Smt. Pushpa Rani the two partners in firm M/s Gopal Cotton Industries have filed this petition u/s 482 of the Code of Criminal Procedure for quashing complaint titled Rameshwar Dass v. Gopal Krishan and Anr. u/s 438 of the Negotiable Instruments Act which is pending in Court of Sub Divisional Judicial Magistrate, Hansi as also aftermath thereof i.e. summoning order dated 30th of August, 1993.

The sole contention of the Learned Counsel appearing for the Petitioners is that from the reading of the complaint and the averments made therein, Section 138 of Negotiable Instruments Act shall not be attracted, With a view to appreciate the controversy involved in this case the relevant facts on which the aforesaid argument is based need mention.

Petitioner No. 1 is stated to have issued a cheque on 13th of April, 1994 for an amount of Rs. 1,81.192.73, It is specifically mentioned in paragraph 3 of the complaint itself that on 13th of April, 1993 itself the Complainant received information from accused No. 1 not to present this cheque with the bank as their firm was not having sufficient funds in their account, The accused, however, requested that cheque be presented after one month and by that time he would arrange the funds. In paragraph 4 of the complaint it is mentioned that in the month of May 1993 accused No. 1 again approached the complaint to wait for further one month and not to present the cheque with the bank as he could not arrange the money by that time. The cheque was presented on 9th of June, 1993, which was dishonoured by the bank with the report, "refer to drawer".

Mr. Baldev Singh, the Learned Counsel representing the Petitioner on the basis of the recent judgment of the Apex Court in Criminal Appeal No. 124 of 1996 (Electronic Trade & Technology Development Corporation Ltd., Secunderabad v. Indian Technologists & Engineers (Electronics) Pvt. Ltd. and Anr.) decided on 22nd of January, 1996, 1996(1) Civil Court Cases 309 (S.C.), contends that Section 138 of the Negotiable Instruments Act shall not be attracted if the one who has issued the cheque informs the payee that he should wait for some time so that funds are arranged The following observations of the Apex Court have been pressed into service:

Suppose after the cheque is issued to 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.

It is true that in paragraph 4 even though month has been mentioned, no date has been given but from earlier para i.e. para 3, it is clear that this information or notice must have been given to the complainant on or after 13th of May, 1993. In view of the observations of the Supreme Court referred to above, there is no choice but for to quash the complaint. So ordered.