Mr. Abhinav Gupta vs State & Ors.
2009 Latest Caselaw 4390 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    Crl. M.C. No. 3197/2009

                                         Reserved on : 23.09.2009
                                     Date of Decision : 29.10.2009

Mr. Abhinav Gupta                                ......Petitioner
                                Through:   Mr. M.S. Pannu, Adv.

                                 Versus

State & Ors.                                     ...... Respondents
                                Through:   Mr. Pawan Bahl, APP

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI


1.     Whether Reporters of local papers can be
       allowed to see the judgment?                  YES
2.     To be referred to the Reporter or not ?        NO
3.     Whether the judgment should be reported
       in the Digest ?                               NO

V.K. SHALI, J.

1. This is a petition filed by the petitioner under Section 482

Cr.P.C. for quashing of the complaint case no. 2002/2001 titled

M/s Kundan Rice Mills Ltd. Vs. M/s C.L. International.

2. Briefly stated the facts leading to the filing of the present

petition are that M/s Kundan Rice Mills Ltd. respondent herein

filed a complaint case against the M/s C.L. International, Sh.

Abhishek Gupta, Shri Abhinav Gupta and Sh. Ravinder Gupta

claiming him to be the in-charge/manager. It is alleged that the

petitioner Abhinav Gupta along with Abhishek Gupta and

Ravinder Gupta used to purchase rice from the respondent

company and in order to pay the outstanding amount of sell sale

price the accused no. 1 to 4 authorized to Mr. Abhinav Gupta

accused no. 3 to sign the cheques. It is alleged that the apart

from this liability Mr. Abhinav Gupta, the petitioner, had issued

a cheque no. 046162 dated 21.03.2008 for a sum of

Rs.6,87,958/- drawn on Bank of India, Overseas Brach, Vijay

Building, 17, Bara Khamba Road, New Delhi from the account of

M/s C.L. International. It is alleged that the aforesaid cheque

on presentation was dishnoured on account of stop payment.

The dishonoured cheque was returned along with a memo dated

11th September, 2008 indicating that there were instructions of

stop payment. It is alleged that the petitioner was the in-charge

of day to day business of the conduct of the firm and is guilty of

Section 138 read with section 141 of the Negotiable Instruments

Act.

3. I have heard the learned counsel for the petitioner. It is

contended that since the cheque has been dishonoured on

account of stop payment and not because of insufficiency of

funds, therefore, the offence under Section 138 of the Negotiable

Instrument Act is not made out and accordingly the petitioner

could not have been summoned and the complaint deserved to

be quashed. The learned counsel for the petitioner has placed

reliance on case titled Bhageerathy Vs V. Beena & Anr. Crl. M.C.

No. 473/1992 Crl. L.J. 3946 of Kerala High Court wherein it has

been held that if the cheque is dishonour only on the ground of

insufficiency of funds or the cheque exceeds the arrangement in

the account then only an offence under Section 138 of the

Negotiable Instrument Act will be made out. Similar is the

judgment of another Single Judge of the Kerala High Court in

case titled S. Ashok & Anr. Vs. Sri Vasudevan Moosad 1993 Crl.

L.J. 2486.

4. I have carefully considered the submissions of the learned

counsel for the petitioner and gone through the judgments relied

upon. I do not subscribe to the view that an offence under

Section 138 of the Negotiable Instrument Act will be made out

only in case if there is a dishonour of cheque on the ground of

insufficiency of funds or if the cheque is returned because it

exceeds the amount which is available in the account. The

Hon'ble Supreme Court in case titled Goa Plast (P) Ltd. Vs. Chico

Ursula D'Souza AIR 2004SC 408 has specifically laid down that

in case the cheque is dishnoured on account of stop payment to

his bankers by the drawer of the cheque then an offence under

Section 138 read with section 142 of the Negotiable Instruments

Act will be made out. The said judgment dealt with this aspect

of the matter in detail and formulates the aforesaid proposition of

law.

5. The very purpose of enacting the provision of 138 of the

Negotiable Instrument Act is to confer credibility to the

commercial transactions by ensuring that the cheque is

honoured by a party which issues the cheque and that is why the

dishonour of cheque on account of insufficient fund or stop

payment would attract the provisions of Section 138 of the

Negotiable Instruments Act. As a matter of fact in case there is

a direction to the banker by the drawer of the cheque that the

cheque should not be honoured which is called in commercial

parlance 'stop payment', it clearly shows that the drawer of the

cheque had a dishonest intention of ensuring that the cheque

which is issued is not honoured and thus not only an offence u/s

138 of the Negotiable Instruments Act will be made out but an

offence of cheating will be also made out.

6. For the reasons mentioned above, I am of the view that

there is no merit in the contention of the learned counsel for the

petitioner that as the cheque was dishnoured on account of stop

payment no offence is made out and the complaint deserves to be

quashed. The petition is totally misconceived and accordingly

the same is dismissed.

7. Expression of any opinion hereinbefore may not be treated

as an expression on the merits of the case.

V.K. SHALI, J.

October 29, 2009 KP