NIRMAL SINGH Vs. JYOTI SARUP

JUDGEMENT

(1.) THIS is a petition under Section 482 of the Code of Criminal Procedure for quashing the complaint dated July 3, 1990 (annexure P-1) and the summoning order dated August 17, 1990 (annexure P-2 ).

(2.) BRIEFLY stated, the relevant facts are that the petitioner issued a cheque dated March 16, 1990, for Rs. 1,16,643 in favour of the respondent. It was presented to the bank several times. Ultimately, the cheque was returned on May 21, 1990, with the remarks that the payment thereof had been stopped by the drawer. The respondent served the requisite notice and the petitioner having failed to make the payment within the prescribed time, the respondent filed a complaint under Section 138 of the Negotiable Instruments Act, as amended by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988. After recording preliminary evidence, the Judicial Magistrate, First Class, Amloh, summoned the petitioner for the aforesaid offence,

(3.) THE contention of Mr. M. L. Merchea, learned counsel for the petitioner, is that one of the essential ingredients of the offence under Section 138 of the Negotiable Instruments Act is that the cheque is returned unpaid because the amount available in that account is insufficient for making the payment of the cheque. As in the facts of the case, the cheque was returned unpaid on account of the payment having been stopped, the said ingredient was missing and, therefore, it would be an abuse of the process of court to allow the proceedings to go on in the court. He relied on Abdul Samad v. Satya Narayan Mahawar [1993] 76 Comp Cas 241 (P and H ).