K.K. SIDHARTHANversusT.P. PRAVEENA CHANDRAN AND ANR.

                                               •



A                            K.K. SIDHARTHAN
                                       v.
                 T.P. PRAVEENA CHANDRAN AND ANR.

                              OCTOBER 8, 1996

B                   [G.N. RAY AND B.L. HANSARIA, JJ.]

        Negotiable Instrnments Act, 1881-Section 138 r/w 149-Dishonour of
  cheque because of 'stop payment'-Complaint u/s 138-Main-
  tainability-Notice was issued to the payee or holder in due course not to
C present the cheque for encashment-Payee or holder in due course presenting
  the cheque-cheque returned on instruction-Sec. 138 held not ap-
  plicable-complaint liable to be quashed.

        Respondent filed a complaint against the appellant u/S 138 r/wS 149
  of the Negotiable Instruments Act, 1881 and Section 480 IPC r/w Ss 190 &
D 200 of the Code of Criminal Procedure, alleging that the appellant
  petitioner had issued two post dated cheques but on the cheques being
  presented the same were returned unpaid with the endorsement 'Payment
  countermanded by the drawer' and for want of sufficient funds in the
  account. The appellant tiled a petition for quashing the complaint but it .
E was dismissed. Hence this appeal.
          The appellant submitted that the cheques were returned, not because
    of insufficient funds, but he had issued stop memo to the bank and that
    there was sufficient balance in the account of the appellant.

F          The respondent contended that the cheques had been dishonoured
    because of insufficiency of funds and that the bank had issued letter
    stat.ing that when the cheques in question were presented there was suffi-
    cient balance in the account of the appellant, with a purpose to help the
    accused in the case.
G         Allowing the appeal, this Court

        HELD : If after the cheque is issued to the payee or to the holder in
  due course and before it is presented for encashment, notice is issued to
  him not to present the same for encashment and yet the payee or the holder
H in due course presents the cheque to the bank for payment and when it is
                                       248
         KK SIDHARIBAN v. T.P. PRAVEENACHANDRAN [HANSARIA,J.] 249

    ,_ returned on instruction, section 138 of the Negotiable Instruments Act       A
       does not get attracted. In the present case cheques were presented after
       the appellant had directed its bank to 'stop payment'. Though it had been
       averred in the complaint that the cheque dated 10.10.1994 was presented
       for collection on the date itself through the bank of the respondent, the
       cheque was presented on 15.10.1994 (in clearing). The lawyer's notice to     B
       the respondent being of 4th October, 1994 which had been replied on 12th
       October, 1994 from Cochi, which is the place of the respondent, whereas
       the Advocate who issued notice on behalf of the appellant was at Thrissur,
       it would seem that the first cheque had even been presented after the
       instruction of 'stop payment' issued by the appellant had become known
       to the respondent. No case under section 138 of the Act had been made out    C
       and, therefore, the complaint is liable to be quashed. [251-E-H; 252-A; BJ

            Electronics Trade and Technology Development Corpn. Ltd. v. Indian
      Technologists and Engineers (Electronics) (P) Ltd., [1996) 2 SCC 739,
    · referred to.
                                                                                    D
          CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
     1774 OF 1996.

          From the Judgment and Order dated 23.8.95 of the Kerala High
     Court in Crl. M. C. No. 677 of 1995.
                                                                                    E
           C.N. Sree Kumar and Shaju Francis for the Appellant.

           T.T. Kunhikannan and Shakil Ahmed Syed for the Respondents.

           The Judgment of the Court was delivered by
                                                                                    F
            HANSARIA, J. Respondent No. 1, hereinafter referred to as the·
     respondent, filed a complaint against the appellant under section 138 read
     with 149 of the Negotiable Instruments Act, 1881 (for short the 'Act') and
     section 420 of the IPC read with sections 190 and 200 of the Code of
     Criminal Procedure. The gravamen of the allegation is that the petitioner G
     had issued two post-dated cheques dated 10.10.1994 and 31.12.1994, each
     for a sum of Rs. 3,00,000, drawn on Indian Overseas Barik, Trichur Branch.
     But on the cheques being presented, the same were returned unpaid on
     15.10.1994 with the endorsement "Payment countermanded by the drawer".
•    The complaint further stated that the cheques was returned unpaid for
     want of sufficient funds in the account. The appellant approached the High H
    250                   SUPREME COURT REPORTS (1996] SUPP. 7 S.C.R.
A Court of Kerala for quashing the complaint but the High Court refused to
    do so. Hence this appeal.

          2. The main part of Section 138 of the Act reads as below :

                 "138. Dishonour of cheque for insufficiency of funds in the
B            account. - Where any cheque drawn by a person on an account
           · maintained by him with a banker for payment of any amount of
             money to another person from out of .that account for the dis-
             charge, in whole or in part, or any debt or other liability, is returned
           · by the bank unpaid, either because of the amount of money
             standing to the credit of that account is insufficient to honour the
c            cheque or that it exce~ds the amount arranged to be paid from
             that account by an agreement made with that bank, such person
             shall be deemed to have committed an offence and shall, without
             prejudice to any other provision of this act, be punished with
             imprisonment for a term which may extend to one year, or with
D            fine which may extend to twice the amount of the cheque, or with
             both."

    This shows that section 138 gets attracted in terms if cheque is dishonoured
    because of insufficient funds or where the amount exceeds the arrangement
E   made with the bank. It has, however, been held by a Bench of this Court
    in Electronics Trade and Technology Development Corpn. Ltd. v. Indian
    Technologists and Engineers (Electronics) (P) Ltd., [1996] 2 SCC 739, that
    even if a cheque is dishonoured because of 'stop payment' instruction to
    the bank, section 138 would get attracted.

p       3. The case of the appellant is that the cheques were returned, not
  because of insufficient funds, but because he had issued stop memo to the
  bank for reasons detailed in the letter of appellant's Advocate dated
  4.10.1994 addressed to the respondent. This letter was replied by the
  respondent on 12.10.94, stating, inter alia, that the allegations made in the
  letter of 4.10.1994 were not true; and date and place may be fixed for
G perusal of the accounts and connected records. The appellant has
  produced a communication of the Indian Overseas Bank, Thrissur, Branch,
  which is at page 64 of the Paper Book, showing that when the cheques in
  question were presented there was sufficient balance in the account of the
  appellant. This communication bears the numbers of two cheques which
H tally with those mentioned in the complaint. We are, therefore, satisfied
    KK SIDHARTIIAN v. T.P. PRAVEENA CHANDRAN [HANSARIA,J.] 251

that the cheques were not returned because of insufficient funds, as is the A
allegation in the complaint.

       3A. It may be stated that the learned counsel for the respondent filed
a written submission, without. having obtained permission when the case
has been finally heard and reserved for judgment, on 7.10.1996 in which it B
has been stated that the cheques in question were issued against Account
No. 562 of the petitioner, in which there was no cover. The· further
submission is that the letter of the Bank Manager which is at page 64 really
represents the balance in Account No. 440. So the contention is that the
cheques had been dishonoured because of insufficiency of fund. Though
when the learned counsel mentioned about the written submission on 7th C
in the Court, it was stated that it would not be possible to consider the
written submission in view of the fact that the judgment has already been
finalised and has been fixed for pronouncement tomorrow; even so, we
have gone into the written submission. We find that in the complaint it was
not mentioned that the cheques had been issued against Account No. 562, D
because of which this amounts to making out a new case in the written
submission. So, we do not accept the allegation that the bank had issued
letter in question "with a propose to the help the accused in the case".

       4. The above apart, though in the aforesaid case this Court held that
even 'stop payment' instruction would attract the mischief of section 138,     E
it has been observed in para 6, that if "after the cheque is issued to the
payee or to the holder in due course and before it is presented for
encashment, notice is issued to him not to present the same for encashment
and yet the payee or holder in due course present the cheque to the bank
for payment and when it is returned on instruction, section 138 does not       F
get attracted". ·

      5. From the facts mentioned above, we are satisfied that in the
present case cheques were presented after the appellant had directed its
bank to 'stop payment'. We have said so because though it has been averred G
in the complaint that the cheque dated 10.10.1994 was presented for
collection on that date itself through the bank of the respondent which is
Catholic Syrian Bank Ltd., from the aforesaid letter of the Indian Overseas
Branch, we find that the cheque was presented on 15.10.1994 (in clearing):'
The lawyer's notice to the respondent being of 4th October, which had
been replied on 12th from Cochi, which is the place of the respondent, H
    252                  SUPREME COURT REPORTS (1996] SUPP. 7 S.C.R.

A whereas the Advocate who issued notice on behalf of the appellant was at
    Thrissur, it would seem to us that the first cheque had even been presented
    after the instruction of 'stop payment' issued by the appellant had become
    known to the respondent.

          6. The aforesaid being the position, we are satisfied that no case
B   under section 138 of the Act has been made out and we, therefore, quash
    the complaint. We may make it clear that we have not addressed ourselves
    on the question whether the respondent was in fact entitled to receive any
    amount from the appellant.

C         7. The appeal is, therefore, allowed. In the facts and circumstances
    of the case, we make no order as to costs.

    R.A..                                                     Appeal allowed.