Sandvik Asia Limited vs Motorol (India) Ltd. and Others

D.G. Deshpande, J.—Heard Mr. Gupte, the learned counsel for the Applicant and Mr, Mundargi, the learned counsel for the Respondents, and Mr. M.P. Galeria, the learned A.P.P. for the State.

The Applicant had filed the complaint being Case No. 3100 of 1996, u/s 138 of the Negotiable Instruments Act, before the learned Judicial Magistrate, First Class, Pimpri, Pune. The Respondents had challenged the order of issuance of process before the IInd Additional Sessions Judge (M.N. Patale), Pune, mainly on two grounds. Firstly, that the verification statement recorded by the learned Magistrate was not signed by him and, secondly, on the basis of a ruling of the Supreme Court in a case of M/s. Electronics Trade and Technology Development Corpn. Ltd., Secunderabad Vs. M/s. Indian Technologists and Engineers (Electronics) Pvt. Ltd. and another, .

The Learned Sessions Judge, Pune, upheld the objections raised by the Accused on both grounds and allowed the Revision petitioner and dismissed the complaint u/s 203 of the Criminal Procedure Code.

Mr. Gupte, the learned counsel for the Petitioner points out that the said judgment of the Supreme Court in Electronics Trade and Technology Development Corporation Ltd. (supra) has been overruled by the Supreme Court in the recent judgment in the case of M/S Modi Cements Limited Vs. Shri Kuchil Kumar Nandi, , and since the said judgment has been set aside, the very foundation of the order of the learned Sessions Judge vanishes. The learned counsel for the Accused tried to distinguish the judgment in the case of M/s. Modi Cements Ltd. (supra) from the judgment in the case of Electronics Trade and Technology Development Corporation Ltd. (supra). However, a careful perusal of the recent judgment of the Supreme Court in the case of M/s. Modi Cements Limited (supra) clearly shows that the judgment in the case of Electronics Trade and Technology Development Corporation Ltd. (supra) has been overlooked and it is no longer good law.

The result of the present judgment of the Supreme Court is that once the cheque is issued by a Drawer, a presumption has to be drawn u/s 139 of the Act and merely because the Drawer issues a notice to the Drawee or to the Bank for stoppage of payment, it will not preclude an action u/s 138 of the Negotiable Instruments Act.

In view of this, the Application is allowed. Rule is made absolute accordingly. The impugned order dated 14th May, 1997 passed by the learned IInd Additional Sessions Judge, Pune, is set aside and the complaint is restored to file on the record of the Trial Court. The parties to appear before it on 10th December, 1998.