M/s Mahaplasto Ltd. vs M/s Bushan Steels and Strips Ltd.

T.H.B. Chalapathi, J.—This application has been filed to quash the complaint No. 160 of 1.11.1995 pending before the Chief Judicial Magistrate, Chandigarh and also the order of the learned Chief Judicial Magistrate dated 4.11.1995 taking cognizance of the complaint and summoning the accused-petitioners for the offence u/s 138 of the Negotiable Instruments Act, 1981.

This application came up before this Court earlier and by a judgment dated January 22, 1997 it was allowed. Against the said order of this Court, a Criminal Appeal No. 1215 of 1998 was preferred by the complainant to the Hon''ble Supreme Court. The Hon''ble Supreme Court set aside the order of this Court in view of its later decision in M/S Modi Cements Limited Vs. Shri Kuchil Kumar Nandi, . 249. But since the counsel for the present petitioners stated before the Apex Court that there are other points which are to be urged in the petition u/s 482 Cr. P.C. the Apex Court ordered restoration of Criminal Misc. No. 310-M of 1996 and directed this Court to decide the petition afresh. That is how this petition has come up before this Court again.

Now the learned counsel for the petitioners urged that the cheque was issued not in discharge of a liability of the petitioners, but as a security to make payment of the liability of another company. Whether the cheque was issued to discharge the liability of the petitioners or for any other purpose is a matter to be decided by the trial court on the basis of the evidence. To prove allegations in the complaint, the complainant may adduce any evidence to show that there exists liability and the cheque in question has been given in the discharge of that liability. This Court without there being any evidence recorded by the trial Court will not be in a position to decide whether there exists a liability and whether the cheque has been given in discharge of that liability.

There is no dispute of the fact that the petitioners have given a cheque which has been bounced on the instructions of the drawer of the cheque to stop payment. At this stage I do not want to go into the various contentions raised by the parties since the same will amount to pre-judging the matter. There being no evidence on record, any observation made by me in regard to the question whether the issuance of cheque as a security amounts to liability or not will prejudice the parties. Prima facie 1 am of the opinion that even if the cheque is issued as security or in discharge of liability of am other person, it amounts to a liability which has been undertaken by the drawer of the cheque. Since the decision, it amounts to a liability which has been undertaken by the drawer of the cheque Since the decision on the point raised by the learned Counsel for the petitioners depends on the evidence to be adduced by the complainant and petitioners, this Court will not be in a position to quash the complaint. To quash the complaint, one has to look into the averments contained in the complaint. The averments made in the complaint clearly show that the cheque in question has been issued only for discharging the liability. It is also not for me to go into the question whether there was any settlement.

In this view of the matter, I do not find any ground to quash the complaint. The petition is therefore, dismissed.