DALBIR SINGH Vs. INDUSIND BANK LTD

JUDGEMENT

(1.) THE petitioners herein, who are A-2 and A-6 in the case taken as C.C. No,8457 of 2002 on file by the XIV Metropolitan Magistrate, Egmore, Chennai, for an offence punishable under Section 138 of the Negotiable Instruments Act, seek to quash the said proceedings.

(2.) AT the outset, it is represented by both the parties that the first petitioner herein has been given up as accused in the case before the learned Magistrate and an endorsement also made to that effect by the complainant. Therefore, this Court has to decide the case only in respect of the 2nd petitioner/A6 treating him as the sole petitioner in this Criminal Original Petition.

(3.) PER contra, learned counsel for the complainant submits that prima facie materials are available in the complaint to constitute the offence against the petitioner. A specific allegation has been made at paragraph No,20 of the complaint to the effect that the petitioner herein/A6 is the controlling authority over the affairs of the first accused and that the accused are jointly and severally liable for dishonour of the cheque in question. Several documents were annexed along with the complaint to substantiate that the essential ingredients to attract Section 138 of the Act are present and also to fix the responsibility on the petitioner in his capacity as Assistant General Manager of the accused Bank. A criminal complaint has been given against the firm and its partners who played fraud and the subject matter and allegations therein are different. The object behind introduction of Section 138 of the Act is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments and that being so, if a cheque is issued to clear certain liability, there is a presumption always in favour of the complainant that the cheque is regarding the discharge of the liability and it is for the accused to prove the contrary and to rebut such presumption and the accused could do so only by adducing evidence during the course of trial. In support of his submission, learned counsel relied on a decision of the Apex Court in Modi Cements Ltd. v. Kuchil Kumar Nandi (AIR 1998 SC 1057), wherein, it has been held that merely because the drawer issues a notice to the drawee or to the Bank for stoppage of payment, it will not preclude an action under Section 138 of the Act by the drawee or the holder of a cheque in due course. In the present case, since prima facie materials are available to proceed against the petitioner herein/6th accused, the Criminal Original Petition may be dismissed.