Ramesh Kumar Handa vs Willson, Manager, Coral Tourist Complex

Harmohinder Kaur Sandhu, J.

Ramesh Kumar and others have filed this petition under Section 482 of the Code of Criminal Procedure for quashing the complaint filed by the respondent in Court on 6.4.1991 and the order dated 18.7.1992 whereby the petitioners were charged by Judicial Magistrate Ist Class, Pathankot to stand trial for an offence under Section 138 of the Negotiable Instruments Act (hereinafter called the Act).

The brief facts of the case, necessary for the disposal of this petition, as given in the complaint are that on 20.1.1991 a function was to be held in Gurdwara Sant Ashram, Mission Road, Pathankot, where petitioners No. 1 to 3 were to supply packed vegetarian and nonvegetarian dinner to the purchasers of the tickets for lucky draw. The respondent was to supply the dinner at the rate of Rs. 36/ per packet and the approximate cost of the packed dinner was Rs. 2,24,000/. Out of this amount, Rs. 50,000/ were paid in cash to the respondents at the time the order was placed and for Rs. 1,00,000/ a cheque bearing No. 797015 dated 14.1.1991 was drawn on State Bank of India, Kathua Branch. This cheque was signed by petitioners No. 1 to 3. The cheque was presented to the Bank for encashment but it was received back on 26.2.1991 along with memo bearing remarks `Refer to Drawer''. A notice was then served on the petitioners according to the provisions of the Act, but the amount of cheque was not paid.

The petitioners alleged in the petition that the complaint and the other material brought on record did not make out any case to warrant conviction of the petitioners under Section 138 of the Act. Section 138 of the Act contemplated issuance of a cheque for the discharge of a debt or liability, but at the time when the cheque in question was issued there was no debt or liability against the petitioners which they were to discharge. The respondent had not supplied the material according to the agreement and there was even no future liability which could be legally enforced against the petitioners. It was further averred that the complaint should have been tried as a summons case but the trial Court adopted an illegal procedure and tried the complaint as a warrant case which caused prejudice to the petitioners.

In the return filed by the respondent that allegations made in the petition were controverted and it was maintained that on January 20, 1991 on the occasion of `Milan Singh Night'' the respondent was to supply packed dinner, the cost of which was calculated at Rs. 2,24,000/. On January 14, 1991 order was booked with the respondent Rs. 50,000/ were given in cash and a cheque for Rs. 1,00,000/ was issued in favour of the respondent. Food packets were supplied as agreed and the cheque was presented on February 9, 1991, which was dishonoured on account of insufficient funds in the account of the petitioners. On February 9, 1991 the total balance in the current account of the petitioners was Rs. 18,455/. The ingredients of the offence were very well disclosed and the petitioners were rightly charged.

I have heard the counsel for the parties.

There is no dispute that the petitioners had contacted the respondent to supply food packets on the function to be held on 20.1.1991. The approximate cost of which was Rs. 2,24,000/. The respondent agreed to supply the packed dinner and the order was booked on January 14, 1991. At that time the respondent was paid Rs. 50,000/ in cash and a cheque for Rs. 1,00,000/ was issued in his favour. According to the respondent the food packets were supplied as agreed but when the cheque was presented on February 9, 1991 it was dishonoured or account of insufficient funds. There is no denial of the fact that the cheque was issued by the petitioners nor this fact has been controverted that the cheque was dishonoured as the amount of money standing to the credit of the account of the petitioners was insufficient to honour the cheque. This fact is also not assailed that within 15 days of the receipt of information by the respondent from the Bank regarding the return of the cheque an unpaid, a notice was sent to the petitioners according to the provisions of subsection (b) of Section 138 of the Act. Admittedly the amount was not paid by the petitioners on receipt of the notice within 15 days. Main contention of the learned Counsel for the petitioners was that when the cheque was issued there was no debt or other liability which was legally enforceable against the petitioners. In fact the cheque was issued on 14.1.1991 while the food was to be supplied by the respondent on 20.1.1991. This contention of the learned Counsel does not hold good. The cheque was issued as an order was placed with the respondent to supply food and according to the respondent this obligation was fulfilled and the amount became due. The cheque was presented to the Bank after the function had been held and at that time the liability was legally enforceable. Whether the food was supplied according to specifications or not is a question to be decided after evidence is led, but at this stage it cannot be said that ingredients of the offence were missing and the petitioners were not even prima facie liable.

The other submissions of the learned Counsel for the petitioners that the complaint was liable to be quashed as the trial Court instead of deciding the complaint as a summons case adopted the warrant procedure is equally without merit. It has not been disclosed as to how the warrant procedure adopted by the trial Court was less favourable to the petitioners.

In view of my above discussion, I find no merit in this petition and dismiss the same.