THE HON’BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP Crl.O.P.No.6694 of 2019 and Crl.M.P.Nos.3703 & 3705 of 2019 M/s. Vishaal Natural Food Products (I). For Petitioners : Mr.B.Satish Sundar For Respondent : Mr.R.Nalliyappan. [8/3, 18:12] Satis Sunder Mhc Advocate: Judgement of sathikumar kurup.j.quasing complaint under s.138 N.I act holding that security cheque given by the accused to complainant during course of business without a contract between them is not an enforceable debt within the meaning of s.138 of the said act.Proceeding of the lower court quashed. [8/3, 18:12] Sekarreporter1: Super
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Order Reserved On: 08.04.2022 Order Delivered On: .07.2022
CORAM:
THE HON’BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Crl.O.P.No.6694 of 2019 and
Crl.M.P.Nos.3703 & 3705 of 2019
- M/s. Vishaal Natural Food Products (I)
Pvt. Ltd.,
Represented by its
Managing Director
Mr.Madhusudhan Sreeramulu Pogakula
- Madhusudhan Sreeramulu Pogakula
Director,
M/s. Vishaal Natural Food Products (I)
Pvt. Ltd., … Petitioners
Vs.
M/s. EMU Lines Pvt Ltd.,
Represented by its Managing Director … Respondent
PRAYER: Criminal Original Petition has been filed under Section 482 of Cr.P.C, prayed to call for the records in C.C.No.1490 of 2017 on the file of the VII Metropolitan Magistrate, GT Court, Chennai and quash the same.
For Petitioners : Mr.B.Satish Sundar
For Respondent : Mr.R.Nalliyappan
ORDER This Petition had been filed to quash the case in C.C.No.1490 of
2017 on the file of the learned VII Metropolitan Magistrate, GT Court, Chennai.
- Mr.B.Satish Sundar, learned Counsel for the Petitioners made his submission. As per his submission, the first Petitioner is a private limited
Company and a 100 % Export Oriented Unit having its factory at Kasaba Hobli, Tumkur District, Karnataka. It is in the business of processing and exports of vegetable products to its overseas and customers. The second
Petitioner is the Managing Director of the first Petitioner/Company. The Petitioners had filed this Petition seeking to quash the criminal complaint filed by the Respondent/Complainant in C.C.No.1490 of 2017 on the file of the learned Metropolitan Magistrate – VII, Chennai under Section 138 r/w. 141 of Negotiable Instruments Act whereby the Petitioners are sought to be tried for the alleged offence under Section 138 r/w. 141 of Negotiable
Instruments Act for dishonour of cheque bearing No.833268 dated
31.10.2015 for a sum of Rs.10,91,640/-.
2.1. As per the submission of the learned Counsel for the Petitioner that on 08.12.2014, M/s. Consolidated India Shipping Pvt. Ltd., Bengaluru, a freight forwarder raises an invoice on the first Petitioner for an amount of Rs.1,14,661/- towards shipment of jerkins made by the supplier to its consignee against shipping bill No.6381492 dated 01.12.2014.
2.2. M/s. Consolidated Shipping India Pvt. Ltd Bengaluru, had raised the following invoices on the first Petitioner towards freight and other charges on the following dates with respect to handling of Petitioner’s cargo:-
| S.
No |
Date | Invoice No. | Shipping Bill No. | Payment Date |
| 1 | 010215 | B30817 | 6645677 | 121514 |
| 2 | 012015 | B31764 | 7013018 | 010315 |
| 3 | 012715 | B31080 | 7098263 | 010816 |
| 4 | 021215 | B36459 | 7437759 | 012715 |
| 5 | 021815 | B36466 | 7650635 | 020615 |
2.3. On 03.03.2015, Invoice No.DD012869 raised by the Respondent on M/s.Vin Shipping Services, Bangaluru on account of hiring of containers by M/s.Vin Shipping Services for the first Petitioner.
2.4. On 19.03.2015, Invoice No.DD013643 raised by the Respondent on M/s.Vin Shipping Services, Bangaluru on account of hiring of containers by M/s.Vin Shipping Services for the first Petitioner.
2.5. On 30.03.2015, Invoice No.DD014074 raised by the Respondent on M/s.Vin Shipping Services, Bangaluru on account of hiring of containers by M/s.Vin Shipping Services for the first Petitioner.
2.6. On 29.4.2015, Respondent issues a legal notice under sec. 433, 434 and 439 of the Companies Act to the Petitioners for winding up alleging that the Petitioners have to pay an amount of Rs. 15,02,944/- with interest on account of they handling various shipments of the Petitioners agreeing to pay freight and freight related charges.
2.7. On 2.5.2015, Respondent issues a notice with respect to shipment
not delivered sent under bill of lading No. 754679186 dated 10.3.2005.
2.8. On 2.5.2015, Respondent issues a notice with respect to shipment not delivered sent under bill of lading No.MSCUIX802672 dated 163.2015
2.9. On 2.5.2015, Respondent issues a notice with respect to shipment not delivered sent under bill of lading No. 754706380 dated 9.4.2015.
2.10. On 8.5.2015, Petitioner responds to notice dated 2.5.2015 and to the legal notice dated 29.4.2016 and write to the Respondents stating that they have not booked any consignments or make shipments through the Respondent and no invoice has been raised with respect to the shipments / containers and there is no subsisting contract between themselves and the Respondent.
2.11. On 8.5.2015, Petitioner responds to notice dated 2.5.2015 and to the legal notice dated 29.4.2016 and write to the Respondents stating that they have not booked any consignments or make shipments through the Respondent and no invoice has been raised with respect to the shipments / containers and there is no subsisting contract between themselves and the Respondent.
2.12. On the same day, Petitioner makes a complaint to the Chamber of Commerce Federation of Chamber, Karnataka with copy to the Respondent and Consolidated Shipping Lines.
2.13. On 11.5.2015 Petitioner writes to M/s. Consolidated Shipping Lines India Pvt. Ltd. Bengaluru for their intervention in the matter and for sorting out the issues
2.14. On 14.5.2015, Petitioners writes to the Respondent seeking release of three bills of ladings for container Nos. MRKU7505106, MEDU1788796, MEDU3502670 AND MRKU 6769090 by enclosing
demand draft of Rs.4,11,304 and also giving a security cheque in No. 833268 drawn on State Bankof India, SME Branch, Bengaluru for Rs. 10,90,640/-. The said communication clearly states that only after mutual discussion, the cheque should be used and amounts should be recovered from M/s. Vin Shipping, the sub-agent of M/s. Consolidated Shipping Line
India Pvt. Ltd. The cheque and the demand draft are at page 40.
2.15. On 24.9.2015, the Petitioner issues to its Banker, “stop payment”, instructions with respect to the cheques
2.16. On 21.1.2016, the Respondent presents the cheques with his Bankers M/s. Oriental Bankof Commerce, Chennai
2.17. On 22.1.2016, the said Bank issues a memo stating that the payment has been stopped
2.18. On 25.1.2016, the memo issued by the Bank is received by the
Respondent.
2.19. On 02.2.2016, Legal notice issued by M/s. UNK Law
Associates, New Delhi on the dishonour of the cheque to the Petitioner
2.20. On 15.2.2016, Reply to the legal notice.
2.21. On 08.03.2016, Complaint is filed by the Respondent against the Petitioners before the lower court for alleged offences under sec. 138 r/w sec. 141 of NI Act under sec. 200 Cr.P.C.
2.22. On 21.03.2016, Case is adjourned for check and call.
2.23. On 06.05.2016, Complaint re-presented and subsequently returned
2.24. On 28.02.2017, Petition to condone the delay and representation before the lower court
2.25. The learned Counsel for the Petitioner submits that that cheque in question was issued only for security purposes and not towards any enforceable liability or debt. This has been made clear by the Petitioner vide their communication dated 14.5.2015 which has been preceded by their reply notice dated 8.5.2015 to the Respondent in which a specific stand had been taken by the Petitioner that there was no subsisting contract or agreement between the Petitioner and the Respondent. This stand of the Petitioner had also been clearly spelt out in the reply notice dated 15.2.2016 sent by the Counsel for the Petitioner to the Counsel for the Respondent who had issued a legal notice in terms of sec. 138 of the NI Act.
2.26. The Petitioner is the Export Orientated Unit dealing with processing of vegetable products. The Petitioner has contract for freight service with M/s. Consolidated Shipping Line India Private Limited and they used to engage M/s.Vin Shipping Services. Both these Companies are used to engage the service of the Respondent for containers used for the freight services. As such, the Petitioners had not been having any contract with the Respondent herein. The Petitioner engages M/s. Consolidated Shipping Line India Private Limited only for the freight services. They used to engage containers of the Respondent for export of Cargo of the Petitioner. As such, there is contract only between M/s. Consolidated Shipping Line India Private Limited and the Respondent. The Petitioner is not having any direct contract with the Respondent. While things stand at that the Petitioners had returned to the Respondent seeking release of three Bills for containers No.MRKU 7505106, MEDU 1788796, MEDU 3502670 and MRKU 6769090 by enclosing the Demand Draft for Rs.4,11,304/- along with a Cheque No.833268 drawn on State Bankof India, SME Branch, Bangaluru for Rs.10,91,640/- dated 31.10.2015 along with communication that only after mutual discussion, the cheque should be issued, amount should be recovered from M/s.Vin Shipping Services and M/s. Consolidated Shipping Line India Private Limited. Therefore, the amount alleged by the Petitioners ought to have been recovered from Vin
Shipping, the Special Agent of M/s. Consolidated Shipping Line India
Private Limited or from M/s. Consolidated Shipping Line India Private Limited and no way the Respondent can demand from the Petitioner. That is why, the Petitioners wrote to the Respondent that only after discussion, the cheque issued as security shall be presented and the amount has been collected from M/s. Vin Shipping, the Special Agent of M/s. Consolidated Shipping Line India Private Limited. Instead of following the said instructions, the Respondents had violated the condition imposed by the Petitioners. Further the learned Counsel for the Petitioners submitted that on the date of memo issued by the Respondent/Bankthat the cheque had been returned as “stop payment”, but there was sufficient funds available with the Petitioners.
2.27. Also, the learned Counsel for the Petitioners invited the attention of this Court to complaint preferred by the Petitioners that the presentation of cheque to customers, Karnataka regarding the conduct of the
Respondent seeking winding up under the Companies Act against the
Petitioners for handling various shipments of the Petitioners. The
Petitioners had clearly made their stand to the notice issued under Section
138 of Negotiable Instruments Act by the learned Counsel for the Respondent/Complainant before filing of the complaint under Section 138 r/w. 141 of Negotiable Instruments Act. Therefore, there is no default on the part of the Petitioners. If at all, there was a default on the part of the
M/s. Consolidated Shipping Line India Private Limited and M/s. Vin Shipping, the Petitioners cannot be mulcted against any liability towards containers hire charges and incidental expenses. Only the M/s. Consolidated Shipping Line India Private Limited and M/s. Vin Shipping had been engaged by the Petitioners. Both these Companies had hired containers from the Respondent. It is for those agencies to pay the dues to the Respondent as per the contract between them. There is no contract between the Petitioners and the Respondent herein.
2.28. Further, learned Counsel for the Petitioners invited the attention of this Court that while exercising discretion under Section 482 of Cr.P.C., this Court can peruse the unimpeachable documents filed along with the Petition by the Petitioners, to find out whether the complaint preferred by the Respondent is maintainable or not as per the Provision of Section 138 of Negotiable Instruments Act. The documents which are well within the knowledge of the Respondent in the form of legal notices, communications, invoices, ledger accounts and Bank Statements which were filed in the typed set of papers are all beyond doubt and therefore can be looked into by this Court even at this stage to find out whether the averments made against the Petitioners in the complaint preferred by the Respondent before the Court of the learned VII Metropolitan Magistrate in C.C.No.1490 of 2017 is sustainable or not.
- From the perusal of the documents, the Court can come to a clear conclusion that the cheque issued by the Petitioners was not for the purpose of recovery of the amount, which is to be recovered either from M/s.
Consolidated Shipping Line India Private Limited or from Sub Agent-Vin Shipping Services, who had utilized the containers hired by the Respondent for carrying the Cargo of the Petitioners herein. They are duty bound to pay as per the contract between them and Respondent. The Petitioners had contract with those Companies i.e., M/s. Consolidated Shipping Line India
Private Limited and M/s. Vin Shipping Services. Therefore, the question of Prosecution of the Petitioners for the alleged offence under Section 138 r/w.
141 of Negotiable Instruments Act is nothing but an abuse of process of Court.
- In support of the submission of the learned Counsel for the
Petitioner, had relied on the following Rulings:
- (2008) 13 SCC 678 in the case of Suryalakshmi Cotton Mills Ltd., Vs. Rajvir Industries Ltd. & Ors.
- (2008) 14 SCC 1 in the case of Rukmani Narvekar Vs. Vijaya Satar Dekar & Ors.
- Judgment of this Court in Crl.O.P.No.14494 of 2014 dated
26.06.2019.
- 1999 1 CTC 6 in the case of Balaji Sea Foods Exports India Ltd. And
Anr. Vs. MAC Industries Ltd. S.Pichalah, Managing Director, 153,
Mount Road, Madras 15, rep by it Authorised person U.Vijayakumar.
Negotiable Instruments Act, 1881, Section 46 and 138 – Dishonour of Cheque – Any debt (or) other liability- Meaning of – Undated, blank cheque obtained by way of security- No liability subsisting on date of excution of cheque –
Subsequently such cheque dishonoured when presented – Persecution under Section 138 not maintainable – Complaint quashed.
- (2008) 7 SCC 137 in the case of Sudhir Kumar Balla Vs. Jagdish Chand and Ors particularly Paragraph Nos.11,13,22 and 23 are read as follows:
“11. The High Court vide its judgment dated 25-12007 allowed the abovesaid five appeals and convicted the appellant under Section 138 of the Act. By the same order, Criminal Miscellaneous Petitions Nos. 29090 and 36987-M of 2001 were allowed and FIRs Nos. 93 and 94 of 1998 lodged by the Respondent and his wife were quashed. By order dated 19-2-2007, the appellant was sentenced to undergo RI for one year and to pay a fine of Rs 8 lakhs and in default thereof, the appellant shall undergo further RI of one year. Hence, the appellant has preferred these appeals.
- Mr P.S. Patwalia, learned Senior Counsel appearing on behalf of the appellant, assailed the judgment of the High Court inter alia contending:
- that the learned Single Judge erred in not appreciating the statement of the Respondent complainant in which he admitted that all the cheques were filled by him, the date and figures of the amounts were also in his handwriting and the appellant simply had signed the cheques. According to the learned counsel, the cheques in question have been forged and fabricated by the Respondent by making material alteration by changing figure in digit from Rs 30,000 to Rs 3,00,000 by adding “zero” at the end of Rs 30,000 and Rs
40,000 to Rs 4,00,000 by adding “zero” at the end of Rs 40,000; and
- that the learned Single Judge erred in not addressing the legal arguments raised on behalf of the appellant that the provisions of Section 138 of the Act are only attracted if the cheques issued in discharge of liability or debt are dishonoured, but not on account of security cheques.
- On examination of the abovestated findings of the learned Single Judge in the judgment impugned before us, we find that the learned Single Judge has not addressed himself on the legal question raised before him by the appellant that the criminal liability of the appellant under the provisions of Section 138 of the Act are attracted only on account of the dishonour of the cheques issued in discharge of liability or debt, but not on account of issuance of security cheques. The learned Single Judge has also not given cogent, satisfactory and convincing reasons for disbelieving and discarding the pre-charge evidence of the appellant corroborated by the evidence of the expert opinion in regard to the interpolation in and fabrication of the cheques by adding one more figure ‘0’ to make Rs 30,000 to Rs 3,00,000 and similarly adding one more figure ‘0’ to make Rs 40,000 to Rs 4,00,000.
- In the backdrop of the facts of these cases, we are of the opinion that the judgments and orders of the High Court cannot be sustained on the premise that the High Court has not addressed itself on the abovesaid two legal questions raised by the appellant and, therefore, the impugned judgments and orders dated 25-1-2007 and 19-22007 are set aside. The interest of justice should be subserved if the matters are remitted to the High Court to decide the appeals filed by the Respondent against the appellant and criminal miscellaneous petitions seeking for quashing the first information reports registered against the Respondent and his wife by the police for commission of the offences stated in FIRs Nos. 93 and 94 of 1998. Needless to say that any observation made by us in this judgment shall not be construed as an expression of opinion on the merits of the cases, which shall be decided by the High Court on their own merits in accordance with law.”
- (2014) 12 SCC 539 in the case of Indus Airways Pvt. Ltd &
Ors Vs. Magnum Aviation Pvt. Ltd. Particularly Paragraph Nos.9,15 and 16 are read as follows:
“ 9. The Explanation appended to Section 138 explains the meaning of the expression “debt or other liability” for the purpose of Section 138. This expression means a legally enforceable debt or other liability. Section 138 treats dishonoured cheque as an offence, if the cheque has been issued in discharge of any debt or other liability. The Explanation leaves no manner of doubt that to attract an offence under Section 138, there should be a legally enforceable debt or other liability subsisting on the date of drawal of the cheque. In other words, drawal of the cheque in discharge of an existing or past adjudicated liability is sine qua non for bringing an offence under Section 138. If a cheque is issued as an advance payment for purchase of the goods and for any reason purchase order is not carried to its logical conclusion either because of its cancellation or otherwise, and material or goods for which purchase order was placed is not supplied, in our considered view, the cheque cannot be held to have been drawn for an existing debt or liability. The payment by cheque in the nature of advance payment indicates that at the time of drawal of cheque, there was no existing liability.
15.The above reasoning of the Delhi High Court is clearly flawed inasmuch as it failed to keep in mind the fine distinction between civil liability and criminal liability under Section 138 of the NI Act. If at the time of entering into a contract, it is one of the conditions of the contract that the purchaser has to pay the amount in advance and there is breach of such condition then purchaser may have to make good the loss that might have occasioned to the seller but that does not create a criminal liability under Section 138. For a criminal liability to be made out under Section 138, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque. We are unable to accept the view of the Delhi High Court that the issuance of cheque towards advance payment at the time of signing such contract has to be considered as subsisting liability and dishonour of such cheque amounts to an offence under Section 138 of the NI Act. The Delhi High Court has travelled beyond the scope of Section 138 of the NI Act by holding that the purpose of enacting Section 138 of the NI Act would stand defeated if after placing orders and giving advance payments, the instructions for stop payments are issued and orders are cancelled. In what we have discussed above, if a cheque is issued as an advance payment for purchase of the goods and for any reason purchase order is not carried to its logical conclusion either because of its cancellation or otherwise and material or goods for which purchase order was placed is not supplied by the supplier, in our considered view, the cheque cannot be said to have been drawn for an existing debt or liability.
- In our opinion, the view taken by the Andhra Pradesh High Court in Swastik Coaters [Swastik Coaters (P) Ltd. v. Deepak Bros., 1997 Cri LJ 1942 (AP)] , the Madras High Court in Balaji Seafoods [Balaji Seafoods Exports (India) Ltd. v. Mac Industries Ltd., (1999) 1 CTC 6
(Mad)], the Gujarat High Court in Shanku Concretes [Shanku Concretes (P) Ltd. v. State of Gujarat, 2000 Cri LJ
1988 (Guj)] and the Kerala High Court in Ullas [Supply House v. Ullas, 2006 Cri LJ 4330 (Ker)] is the correct view and accords with the scheme of Section 138 of the NI Act. The view taken by the Delhi High Court is plainly wrong and does not deserve acceptance.”
- The learned Counsel for the Respondent submitted that the
Petitioner himself had admitted his liability and invited the attention of this Court to the typed set filed by the Petitioners in Paragraph No.37.
5.1. The learned Counsel for the Respondent objected to the line of the argument of the learned Counsel for the Petitioners seeking to quash the complaint. Further, the learned Counsel for the Respondent relied on the following rulings:
(I) Crl.A.No.1382 & 1383 of 2019 in the case of M/s. Womb Lab oratories Pvt Ltd., Vs. Vijay Ahuja & Anr and Crl.A.No.1446 of 2021 in the case of Sunil Todi & Ors Vs. State of Gujarat & Anr.
5.2. Even though it is claimed to be security by the Petitioners and submitted that the Petition filed under Section 482 of Cr.P.C cannot at all be considered by this Court. What had been submitted by the learned Counsel for the Petitioner is to be considered only, during trial before the learned trial Judge and not while exercising discretion under Section 482 of Cr.P.C., If this Petition is allowed, the criminal complaint filed by the Respondent is quashed, it will result in miscarriage of justice and violation of the guidelines issued by the Hon’ble Supreme Court to Hon’ble High Courts that it shall not exercise its power under Section 482 of Cr.P.C., leniently and only to be used sparingly.
- On consideration of the rival submission, it is found that the line of the argument of the learned Counsel for the Petitioners is found acceptable considering the reply notice sent by him to the Respondent/defacto Complainant denying any direct contract between the Petitioners herein and the Respondent.
6.1.Also, the learned Counsel for the Petitioners invited the attention
of this Court to Suit filed by the Petitioners herein before the City Civil Court, Bangaluru which is available in Page No.41 of the additional typed sets of papers and in which the Respondent herein as Defendant had filed the written statement in O.S.No.946 of 2018, suit filed by the Petitioners herein against (i) M/s. Consolidated Shipping Line India Private Limited (ii) the Managing Director of M/s. Consolidated Shipping Line India Private Limited (iii) EMU lines Private Limited for the defendants had failed to deliver the goods to the clients of the Petitioners/Plaintiffs. Therefore, seeking damages from the defendants 1 to 3 in the Suit.
- The reported ruling of the Hon’ble Supreme Court relied on by the learned Counsel for the Respondent/Complainant will not help his case. The reliance placed by the learned Counsel for the Petitioners regarding the reply notice sent by the Petitioners specifically objecting to the notice under Section 138 of Negotiable Instruments Act by the learned Counsel for the Respondent/Complainant that there is no contract between the Petitioners herein and the Respondent for the claim that there is prior debt or enforceable liability against the Petitioners with the Respondent. That is why, the Petitioners had instructed stop payment to the Petitioners’
Bankwhen there was sufficient funds available with the Petitioner’s BankAccount. Inspite of such reply, the Respondent had proceeded by filing the complaint under Section 138 of Negotiable Instruments Act is found violation of specific condition imposed by the Petitioners while issuing a notice as early as 08.05.2015. Ignoring the request of the Petitioners and filing a complaint under Section 138 r/w. 141 of Negotiable
Instruments Act which amounts to misusing the Provision of Negotiable Instruments Act. Therefore, the reliance placed by the learned Counsel for the Respondent that even though the cheque had been issued as security it can be presented and amount recovered by the Respondent/Complainant based on the above ruling will not help the Respondent’s case.
- Further, the argument of the learned Counsel for the Respondent that if this Petition is allowed and criminal complaint in C.C.No.1498 of 2017 on the file of the learned Metropolitan Magistrate – VII, Chennai is quashed, it amounts to miscarriage of justice in the light of the reported ruling of the Hon’ble Supreme Court in 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 in the case of State of Haryana and others Vs. Bhajanlal and others. Also will give cause to the Respondent/Complainant because the Respondent had taken the risk ignoring the warning and the caution issued by the Petitioners to the Respondent as early as 08.05.2015 in his letter and notice. Further the same position had been re-iterated by the learned Counsel for the Petitioner by way of reply to the statutory notice issued under Section 138 of Negotiable Instruments Act on behalf of the Respondent/Complainant. Further the reported rulings relied on by the learned Counsel for the Respondent/Complainant are distinguishable from the facts of this case. Here, the Petitioner himself asserts it is a Company dealing with export of processed vegetables to its clients/customers, overseas and therefore it had engaged only M/s. Consolidated Shipping Line India Private Limited for the purpose of exporting the Cargo. M/s.
Consolidated Shipping Line India Private Limited had engaged M/s. Vin
Shipping Services as Sub Agent. Both M/s. Consolidated Shipping Line
India Private Limited and M/s. Vin Shipping Services had contract with Respondent on hiring the containers from the Respondent. The Petitioners had contract only with M/s. Consolidated Shipping Line India Private Limited. Therefore, for the outstanding with the M/s. Consolidated
Shipping Line India Private Limited and M/s. Vin Shipping Services, the Respondent ought to have recovered the amount from them. In such circumstances, the Petitioner had issued Demand Draft of Rs.4,11,304/- and along with that, as a security, issued a cheque and requested the Respondent not to present it till the amount is recovered either from M/s.
Consolidated Shipping Line India Private Limited or M/s. Vin Shipping Services. Instead it had presented the cheque and violated the condition imposed by the Petitioner. Apprehending that there is a chance for the Respondent to present the cheque, the Petitioner had issued, “stop payment”, to its Bankers even though there was sufficient funds available with the Petitioner. Therefore, for the violation of the condition imposed by the Petitioner and taking advantage of the cheque issued as a security, the learned Counsel for the Respondent/Complainant cannot seek help of the reported ruling for presenting the cheque and subsequently filing a case under Section 138 of Negotiable Instruments Act. Therefore, it is to be distinguished from the reported ruling cited by the learned Counsel for the Respondent. In the reported ruling, there had been contract between the parties to the complaint under Section 138 of Negotiable Instruments Act.
Here, there is no such contract between the Petitioner herein and the Respondent. Therefore, the said rulings relied on by the learned Counsel for the Respondent will not help the case of the Respondent/Complainant. Also there had been Civil Suit pending before the City Civil Court,
Bangaluru between the Petitioners herein and the M/s. Consolidated Shipping Line India Private Limited along with the Respondent herein for not delivering the goods to the clients, customers of the Petitioner herein. Therefore, the Petitioner had filed a Suit seeking damages.
- In the light of the materials relied on by the learned Counsel for the
Petitioner and the ruling relied on by the learned Counsel for the Respondent/Complainant stating that even though the cheque had been issued as a security, the Respondent is within its discretion to present the cheque, violating the condition of the Petitioner and ignoring the request of the Petitioner as early as 08.05.2015 and then filing a complaint under Section 138 of Negotiable Instruments Act distinguishes this particular case from the reported ruling relied on by the learned Counsel for the Respondent/Complainant. Under those circumstances, the conduct of the
Respondent/Complainant ignoring/violating the request letter of the Petitioner as early as 08.05.2015 and the reply re-iterated the same position in his reply to the statutory notice by the learned Counsel for the Respondent/Complainant also distinguishes this particular case from the case of the reported ruling relied on by the learned Counsel for the Respondent/Complainant. Under those circumstances, the guidelines issued by the Hon’ble Supreme Court to the Hon’ble High Courts while exercising discretion under Section 482 of Cr.P.C., advising the High Courts not to use the extraordinary powers under Section 482 of Cr.P.C., leniently and use it sparingly, is found not applicable to the facts of the case of the Respondent. Whereas relying on the same Ruling 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 in the case of State of Haryana and others Vs. Bhajanlal and others, the learned Counsel for the Petitioners submitted that this is a case where the powers of Hon’ble High Courts under Section 482 of Cr.P.C., has to be sparingly used in the light of the materials placed before the Court that can be considered by the Court while exercising power under Section 482 of Cr.P.C., Therefore, the arguments of the learned Counsel for the Respondent/defacto Complainant is rejected and arguments of the learned Counsel for the Petitioners is accepted in the light of the guidelines issued to the Hon’ble High Court under Section 482 of Cr.P.C., by the Hon’ble Supreme Court reported in 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 in the case of State of Haryana and others Vs. Bhajanlal and others. It is nothing but an abuse of process of Court by the learned Counsel for the Respondent/defacto Complainant only to cause harassment to the Petitioner.
Hence, the case against the Petitioner is liable to be quashed.
In the result, this Criminal Original Petition is allowed. Consequently, the criminal complaint filed by the Respondent/Complainant in C.C.No.1490 of 2017 on the file of the learned Metropolitan Magistrate – VII, Chennai is quashed. Consequently, connected Miscellaneous Petitions are closed.
.07.2022
dh
Index: Yes/No
Internet: Yes/No
Speaking Order/Non Speaking Order
To
The VII Metropolitan Magistrate, GT Court, Chennai.
SATHI KUMAR SUKUMARA KURUP.,J.
dh
Pre-delivery Order in
Crl.O.P.No.6694 of 2019
.07.2022
