JUDGMENT
V.B. Gupta, J.
1. The present petition has been filed under Section 482 CrPC for quashing of the complaint case filed under Section 138 of the Negotiable Instruments Act and orders dated 29th November, 2003 and 18th March, 2006 and also the subsequent proceedings relating thereto.
2. The brief facts, as alleged in the petition, are that a Hire Purchase Agreement dated 19th September, 2001 was executed between the respondent no. 3 and respondent no. 4 and petitioner acted as the guarantor for the said loan. Thirty six (36) cheques were handed to the representative of respondent No. 2. Later on the petitioner detected the fraud in the agreement and issued legal notice to respondent no. 2 not to present any cheque for encashment. The respondent no. 2 terminated the agreement dated 19th September, 2001 and also invoked the arbitration clause and filed the application under the Arbitration and Conciliation Act in the civil suit and prayed to the Court to refer all the disputes for adjudication before the Arbitrator which was allowed by the civil judge. Later on 9th September, 2003, respondent no. 2 filed the complaint under Section 138 of the Negotiable Instruments Act before the Magistrate and the Magistrate passed the summoning order against the petitioner and other persons. Thereafter, respondent no. 2 repossessed the vehicle from respondent no. 4 and sold the vehicle. On 29th July, 2005 the respondent no. 2 gave a statement before the Magistrate and sought the permission to withdraw the case against the other persons except the petitioner and the learned Magistrate granted the permission and accordingly the proceedings were dropped against the other persons. Vide impugned order dated 8th March, 2006 notice under Section 251 CrPC was framed against the petitioner.
3. It has been contended by the learned Counsel for the petitioner that admittedly the petitioner has issued notice not to present the cheques in question and the said cheques have not been dishonoured subsequent to such notice and as such the proceedings under Section 138 of the Negotiable Instruments Act, 1881 are not maintainable against the petitioner. Further the cheques were not dishonoured on account of any dishonest intention on the part of the petitioner but on account of genuine dispute between the parties and the matter having been referred to the arbitration, the present complaint is clear abuse of the process of the Court.
4. Learned Counsel for the petitioner, in support of his contentions, has cited certain judgments namely – Electronics Trade and Technology Development Corporation Ltd., Secundrabad v. Indian Technologists & Engineers(Electronics) Pvt. Ltd. and Anr. 1(1996) CCR 136(SC) and Raj Mehta(Ms.) v. H.P.S.Chawla 2005 VI AD(Delhi) 511.
5. The present petition has been filed under Section 482 CrPC which reads as under:
482. Saving of inherent power of High Court – Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
6. This provision of law envisages three circumstances under which the inherent jurisdiction may be exercised, namely
i)to give effect to an order under the code,
ii)to prevent abuse of the process of court, and
iii)to otherwise secure the ends of justice.
7. Further to seek interference under this Section, three conditions are to be fulfillled, namely
i)the injustice which comes to light should be of a grave and not of a trivial character;
ii)it should be pulpable and clear and not doubtful; and
iii)there exists no other provision of law by which the party aggrieved could have sought relief.
8. Keeping in view these principles in mind, it is to be seen as to whether the present petition under Section 482 CrPC is maintainable or not.
9. Firstly, the summoning order in the present case was passed as early as on 29th November, 2003 and now after more than 3 1/2 years the petitioner is challenging that summoning order and further notice under Section 251 CrPC was given to the petitioner on 18th March, 2006 and that too is being challenged after more than one year.
10. It is well settled that benefit of Section 482 CrPC should not be extended to persons who do not approach the Court at the earliest possible opportunity. So on account of the delay and laches, the petitioner is not entitled to the relief as sought for and the benefit under Section 482 CrPC is not to be granted on this short ground.
11. Now coming to the merits of the case, admittedly the petitioner Tara Chand issued cheques in favor of the complainant/respondent. All the pleas which have been taken by the petitioner with regard to the non-maintainability of the complaint should be taken up before the trial court and it is a matter of evidence and it is for the trial court to consider all these pleas.
12. The decision in Electronics Trade and Technology Development Corporation Ltd., Secundrabad v. Indian Technologists and Engineers(Electronics) Pvt. Ltd. and Anr. Cited by learned Counsel for the petitioner has been over ruled by the Supreme Court in case of Goaplast(P) Ltd. v. Chico Ursula D’souza and Anr. 2003 SCC(Crl) 603 where the question was whether Section 138 of the Negotiable Instruments Act is applicable or not where the payment was stopped prior to the due date of the cheque. It was held that–
In the present case the issue is very different. The issue is regarding payment of a post-dated cheque being countermanded before the date mentioned on the face of the cheque. For the purpose of considering the issue, it is relevant to see Section 139 of the Act which creates a presumption in favor of the holder of a cheque. The said section provides that:
139. It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.
Thus it has to be presumed that a cheque is issued in discharge of any debt or other liability. The presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. This presumption coupled with the object of Chapter XVII of the Act which is to promote the efficacy of banking operation and to ensure credibility in business transactions through banks persuades us to take a view that by countermanding payment of post-dates cheque, a party should not be allowed to get away from the penal provision of Section 138 of the Act. A contrary view would render Section 138 a dead letter and will provide a handle to persons trying to avoid payment under legal obligations undertaken by them through their own acts which in other words can be said to be taking advantage of one’s own wrong. If we hold otherwise, by giving instructions to banks to stop payment of a cheque after issuing the same against a debt or liability, a drawer will easily avoid penal consequences under Section 138. Once a cheque is issued by a drawer, a presumption under Section 139 must follow and merely because the drawer issued 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 the cheque in due course. This was the view taken by this Court in Modi Cements Ltd. v. Kuchil Kumar nandi. On same facts is the decision of this Court in Ashok Yeshwant Badave v. Surendras Madhavrao Nighojakar. The decision in Modi case overruled an earlier decision of this Court in Electronics Trade & Technology Development Corpn. Ltd. v. Indian Technologists & Engineers(Electronics)(P) Ltd. which had taken a contrary view. We are in respectful agreement with the view taken in Modi case. The said view is in consonance with the object of the legislation. On the faith of payment by way of a post-dated cheque, the payee alters his position by accepting the cheque. If stoppage of payment before the due date of the cheque is allowed to take the transaction out of the purview of Section 138 of the Act, it will shake the confidence which a cheque is otherwise intended to inspire regarding payment being available on the due date.
13. Under these circumstances, I hold that the present petition under Section 482 CrPC is nothing but an abuse of the process of law and all these pleas which have been taken up by the petitioner can be taken during the course of the trial before the court of Magistrate. Hence the present petition is liable to be dismissed with heavy costs and as such it is dismissed with costs of Rs.10,000/-.
14. The petitioner is directed to deposit the costs with the trial court within one month from the date of this order, failing which the trial court shall recover the same in accordance with law. Copy of this judgment be sent to the trial court.