(1.) This petition takes an exception to the order dated 17.12.2018 passed by learned Additional Sessions Judge, Kalyan in Criminal Revision No. 115 of 2018 arising out of order dated 25/5/2018 passed by 9th J.M.F.C. Kalyan in Cr. Case No. 561/2018.
(2.) Learned counsel appearing for the petitioner invites attention of this Court to the averments in the complaint and submits that, there is no averment in the complaint that the cheque was dishonoured for insufficient funds in the account. It is submitted that by mistake cheque was issued on 20th Feb. 2018. On 21st Feb. 2018 by E-mail sent at 9.13 AM, petitioner requested not to present the cheque. Said E-mail was received by the Respondent on 22nd Feb. 2018. The cheque was returned despite sufficient funds in bank account as payment was stopped by the petitioner. The Trial Court did not appreciate that the cheque was presented in clearing by respondent bankers on 21st Feb. 2018, after receipt of notice by respondent the cheque was presented to petitioner's banker on 22nd Feb. 2018. It is submitted that it is not in dispute that stop payment instructions were given to bankers after requesting the Respondent not to present the cheque. Since the cheque was not dishonoured for want of sufficient funds no process ought to have been issued by the Trial Court. It is submitted that, entire medical bill of Respondent No. 1 was cleared by the petitioner by depositing Rs. 1,55,000.00 and therefore, there was no necessity of issuing cheque in favour of Respondent No. 1. Therefore, learned counsel appearing for the petitioner relying upon the pleadings and grounds taken in the petition submits that, petition may be allowed.
(3.) On the other hand learned counsel appearing for Respondent No. 1 invites attention of this Court to the averments in the complaint and submits that, the Trial Court after considering the averments in the complaint and also statement of Respondent No. 1, and the other material on record, has rightly issued the process. It is not in dispute that the cheque was issued in favour of Respondent no. 1 signed by the petitioner. There is compliance of mandate of Sec. 138 of Negotiable Instruments Act (for short "the said Act"). It is submitted that on 5th Feb. 2018, lady namely Usha Shankar Salekar was admitted in the complainant hospital as an indoor patient. She was admitted as indoor patient on 5th Feb. 2018 till 20th Feb. 2018. The complainant raised total bill of Rs. 2,99,218.00 to Usha Salekar towards treatment and other charges. Out of total due amount from Smt. Usha Salekar to the complainant, the accused showed willingness to pay the amount of Rs. 1,30,000.00 by way of cheque as Smt. Salekar is the mother of accused. Accordingly, the accused had issued cheque of Rs. 1,30,000.00 drawn on Central Bank of India, Dombivli Branch, bearing Cheque No. 327981 dated 20th Feb. 2018 in favour of "Orien Multispeciality Hospital". The said cheque was deposited by Respondent No. 1 with banker of the complainant 'The Saraswat Co-op. Bank Ltd'- Dombivli East Branch, on 20th Feb. 2018. The said cheque was returned unpaid on 22nd Feb. 2018 by the banker of the complainant. Therefore, notice was sent to the accused and after compliance of mandate of Sec. 138 of the said Act the complaint was filed before the concerned Court wherein the Trial Court has rightly issued the process. It is submitted that, merely because it was communicated by the petitioner not to present the said cheque by sending e-mail on 21st Feb. 2018 however, the cheque was deposited in the Bank on 20th Feb. 2018 itself. It is submitted that once there is no dispute that the cheque was issued and same was signed by the petitioner, the question of stoppage of payment won't arise. Out of total amount of Rs. 2,99,218.00, petitioner deposited Rs. 1,55,000.00 and balance amount was due and payable and against the said liability aforesaid cheque was issued by the petitioner. It is submitted that, the Honourable Supreme Court in the case of (M/s) Modi Cements Ltd. Versus (Shri) Kuchil Kumar Nandi,1998 20 GLH 577 held that, once the cheque is issued by the drawer a presumption under Sec. 139 of the said Act, must follow and merely because the drawer issues a notice to the drawee or to the Bank for stoppage of the payment it will not preclude an action under Sec. 138 of the said Act, by the drawer or the holder of a cheque in due course.