JUDGMENT
Manju Goel, J.
1. This petition u/s 482 Cr.P.C. challenges the order dated 6.1.2004 by which the application of the petitioner for recalling the order summoning him as an accused in a complaint case u/s 138 of the Negotiable Instruments Act was dismissed. Before coming to the grounds on which the order is sought to be set aside, it is necessary to recall the case of the respondent as made out in the complaint. Copy of the complaint, which was sought to be quashed, was not filed with the petition. Only at the end of the arguments of the learned counsel for the petitioner, the copy of the complaint was provided to the court by the respondent. As per this complaint, two cheques issued by the petitioner being cheque No.2 852901 and 852902 were dishonoured with the remarks ‘payment stopped by the drawer’. Respondent alleges in the complaint that the petitioner was in occupation of premises of D-9/4, Okhla Industrial Area, Phase-I, New Delhi owned by the respondent on a leave and license agreement on monthly charges of Rs.75,000/- for the period of 1.1.99 to 31.12.2000 and thereafter on monthly charges of Rs.84,000/- per month, that the petitioner stopped using the premises in November, 2001 when a sum of Rs.4,75,244/- towards occupation charges apart from charges for electricity and water consumption were due, that the two cheques were issued towards occupation charges, that the cheques were deposited on 31.1.2002 by the respondent in his own bank namely Central Bank of India, Sukhdev Vihar, New Delhi which were returned with the dishonour memo dated 5.2.2002 and that the respondent thereafter called upon the petitioner to pay the amount covered by the cheque vide a notice dated 8.2.2002.
2. The ground for quashing the complaint are that the two cheques in question for the sum of Rs.58,450/- each were towards advance payment of rent which remained in the hands of the respondents even after the premises were vacated by the petitioner in October, 2001, that the cheques were therefore not for any existing debt or liability but only to be used towards rent for the months subsequent to October, 2001, that the application of the petitioner enumerating these facts submitted before the trial court was not replied to by the respondent and thus not denied, that it was in fact the respondent who was liable to refund the security deposit and other charges and that in view of these additional facts, the trial court should have recalled the summoning order.
3. It is conspicuous that none of the grounds refer to any inherent defect in the complaint. This explains why the copy of the complaint was not filed by the petitioner. In fact during arguments also no reference to the contents of the complaint was even made by his counsel. At the time of argument, learned counsel for the petitioner submitted that the complaint was an abuse of the process of law. In order to assert his point, he reiterated the facts alleged in the petition u/s 482 Cr.P.C. namely that the cheques were towards advance payment and that the occasion to encash the cheque had not arisen as the petitioner who was occupying the premises owned by the respondent had vacated the property before the period for which those cheques had been given. Therefore, in order to appreciate the plea raised by the petitioner, the court has to put the case of the petitioner on trial.
4. I find no force in the argument of the learned counsel for the petitioner that since the respondent did not file a reply to the application of the petitioner for recall of the summoning order before the trial court it has to be deemed that the respondent had admitted the case of the petitioner on facts. There is no such law in the Code of Criminal Procedure. The principles applicable to construction of pleadings under the Civil Procedure Code are not applicable to the criminal proceedings. The fact remains that the respondent opposed the petition of the petitioner before the trial court on questions of law although without filing a reply in respect of the questions of fact. Here, the respondent has filed a reply but it is not necessary to examine the reply because that will mean examining the case on facts which can be done only in a trial and not in a petition u/s 482 Cr.P.C. The Trial Court referring to certain authorities observed that the pleas raised were in the nature of defense and could not be considered at the very initial state of the case. I find myself in complete agreement with the learned trial court. The judgment relied upon by the petitioner namely Sreenivasan v. State of Kerala 2000 Dishonour of Cheque Reporter 199 is not applicable to the facts of the case because the respondent in his complaint has pleaded that the cheques were issued for a pre-existing liability whereas in the ruling of the Kerala High Court, the complaint was found to be not maintainable because the cheques were issued for security and not on account of pre-existing liability.
5. The judgment of the Supreme Court in the case of M/s M.M.T.C. Ltd. and Anr. v. M/s Medchi Chemicals and Pharma (P) Ltd. and Anr. 2002 CRI.L.J. 266 completely answers all the issues raised in this case. In this judgment, the scope of Section 482 Cr.P.C. was examined in the light of the facts which raised questions involved with the present case. It was held in the first place that there is no requirement in Section 138 or Section 142 of the Negotiable Instruments Act for the complainant to allege that there was a subsisting liability and inherent power could not be used to quash the complaint on the grounds that the cheques were not given for any debt or liability. Secondly, it was held that a complaint under section 138 of the Negotiable Instruments Act is maintainable when a cheque is dishonoured on account of instructions to stop payment. About the availability of the plea that the payment was stopped on account of a dispute regarding liability, the Supreme Court said ‘ The accused can thus show that the ‘stop payment’ instructions were not issued because of insufficiency or paucity of funds. If the accused shown that in his account there was sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused. Thus a court cannot quash a complaint on this ground.’
6. Learned counsel for the petitioner does not dispute that the disputed questions of fact have to be settled in trial. The law in this regard has been sufficiently settled by the Supreme Court in various judgments including that State of Haryana v. Bhajan Lal 1992 Supplement (1) SCC 335 and Zandu Pharmaceutical Works Ltd. and Ors. v. Mohd. Sharaful Haque and Anr. (2005) 1 SCC 122.
7. The petition is dismissed.