Kapil Mehra vs Sanjeev Jain

J.B. Garg, J.—Kapil Mehra, Director of M/s. Nice Tools and Forgings, Private Limited, G.T. Road, Ludhiana, has moved the present petition u/s 482 of the Code of Criminal Procedure, challenging the summoning order dated 1.2.1993 passed by Shri Tejwinder Singh, Judicial Magistrate I Class, Ludhiana in a complaint filed by Sanjeev Jain for offence u/s 138 of the Negotiable Instruments Act.

Briefly the petitioner has alleged that Sanjeev Jain, Director of M/s. S.K. Steels and Investment Private Limited, Ludhiana, supplied to him steel material weighing 9.83 metric ton valued at Rs. 1,14,519.50P vide bill No. 42 dated 3.9.1991; that the petitioner issued Cheque No. 040836 dated 25.2.1992 for Rs. 50,000/ - and Cheque No. 040837 dated 28.2.1992 for Rs. 64,519/ - of the State Bank of India, Miller Ganj, Ludhiana. That because the goods supplied by the respondent turned out to be defective and there was also shortage in supply the payments of both the cheques was stopped by the petitioner by writing a letter dated 24.2.1992 to their bankers and a copy of this letter is Exhibit P.3, that the petitioner possessed sufficient capacity and balance to meet the aforesaid cheques as is evident from the extract of the ledger-folio (Annexure P-4).

The reply dated 14.12.1993 has been filed by Sanjeev Jain - respondent wherein it has been averred that two cheques were issued on the assurance that these would be honoured on presentation; that the cheque dated 28.2.1992 was dishonoured with the remarks ''not arranged for'', that the commission of offence was completed as soon as the cheques were dishonoured.

The learned Counsel for the petitioner has referred to Section 138 of the Negotiable Instruments Act, 1881, which after the amendment of 1988 reads as under:

(Text of S. 138 omitted)

It has been stated that it is an essential ingredient that the amount of money was found insufficient to honour the cheque.

A perusal of the ledger-folio (Annexure P.4) shows that the petitioner possessed much more in the column of balance and it was not a case that the cheques were dishonoured on account of insufficiency of the funds. The question of fact regarding sufficiency of the funds has not been specifically controverted in the reply dated 14.12.1993. On the contrary, the plea of the petitioner had been that the quality of goods supplied was ''defective'' and there was also ''shortage in supply'' and that is why, they had specifically instructed the Bankers to stop payments vide their letter dated 24.2.1992 (Annexure P.3).

The learned Counsel for the petitioner has referred to Abdul Samad v. Satya Narayan Mahawat 1990 (2) RCR 335 wherein also the payment was stopped for a specific reason and it was held that Section 138 of the Act was not applicable. In Bhageerathy v. V. Beena and Anr. 1993(1) RCR 386 it was held that Section 138 of the Act is attracted if there was insufficiency of the amount in the account of the drawer of the cheque. The facts show that there was no insufficiency in the case now in hand.

The conclusion is that the present petition succeeds and the impugned order is hereby quashed.