ASHISH DWIVEDI Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) PRESENT application under Section 482 of the Cr.P.C. is directed against the summoning order dated 11.12.2003 by which the applicant has been required to appear before the Special Judicial Magistrate, Haridwar in criminal case no. 561 of 2003, Sudesh Kumar v. Ashish Dwivedi & Other under Section 138 of the Negotiable Instruments Act.

(2.) APPLICANT Ashish Dwivedi has made a prayer to quash the summoning order dated 11.12.2003 as well as the proceedings of the aforesaid criminal case no. 561 of 2003, Sudesh Kumar v. Ashish Dwivedi & Other under Section 138 of the Negotiable Instruments Act pending in the Court of Special Judicial Magistrate, Haridwar.

(3.) THE endorsement made by the bank shows that the applicant had issued an instruction of 'Stop Payment' on the demand on submission of the afore said cheque. Provisions of Section 138 of the Negotiable Instruments Act are attracted only in case when the amount of money standing to the credit of that account is insufficient to honour the cheque or when it exceeds the amount arranged to be paid from that account by an agreement made with that bank and only then such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both. The contingency that, despite the aforesaid two conditions being fulfilled in the account, if the payment is not made by the bank on submission of the cheque on account of 'Stop Payment' instruction by the account holder who has drawn the cheque, is not covered under Section 138 of the Negotiable Instruments Act. This con- tingency arises only when some dispute relating to agreed payment arises after issuance of the cheque between the parties and in order to settle such dispute, 'Stop Payment' instruction is issued by the drawer of the cheque to the bank.