PULSIVE TECHNOLOGIES P.LTD. Vs STATE OF GUJARAT .
Bench: RANJANA PRAKASH DESAI,N.V. RAMANA
Case number: Crl.A. No.-001808-001808 / 2014
Diary number: 38830 / 2011
Advocates: SUMITA RAY Vs
HEMANTIKA WAHI
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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1808 OF 2014 [Arising out of Special Leave Petition (Crl.) No.9901 of
2011]
Pulsive Technologies P. Ltd. … Appellant
Vs.
State of Gujarat & Ors. … Respondents
WITH
CRIMINAL APPEAL NO.1807 OF 2014 [Arising out of Special Leave Petition (Crl.) No.9915 of 2011]
J U D G M E N T
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. These appeals are directed against the judgment and
order dated 08/09/2011 passed by the High Court of
Gujarat in Criminal Misc. Application No.1757 of 2007 and
Criminal Misc. Application No.9158 of 2007 whereby the
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High Court of Gujarat quashed the criminal complaint filed
by the appellant being Criminal Case No.6076 of 2006
pending on the file of the Chief Judicial Magistrate of
Vadodara for offences punishable under Section 138 and
142 of the Negotiable Instruments Act (‘the NI Act’).
Brief facts of the appellant-Company’s case.
3. The appellant in both the appeals is the original
complainant. It is a private limited company. Contesting
respondent no. 2 in appeal arising out of SLP No. 9915 of
2011 is the accused company and contesting respondent
nos. 2 to 4 in appeal arising out of SLP No. 9901 of 2011
are its directors.
4. In the course of its business, the accused received
bulk orders from Gujarat Informatics Limited (“GIL”), a
Government of Gujarat Company for supply of desktop
computers, printers, UPS and other products. The
complainant being one of the approved vendors on the list
of the GIL, the accused, placed various purchase orders
with the complainant and the complainant sold and
supplied the same as per the demand and specifications.
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During the course of business, the accused made
part payments regularly. For the remaining outstanding
legitimate dues of the complainant, the accused handed
over a post-dated cheque bearing No.387176 dated
15/07/2006 for Rs.11,80,670/- drawn on HSBC Bank,
Bangalore in favour of the complainant.
5. The complainant presented the cheque twice for
collection through its bankers viz. Bank of Baroda,
Jetalpur Branch. It was returned unpaid on 3/10/2006 for
the reason “Payment stopped by drawer”. The
complainant on 13/10/2006 sent a demand notice to the
accused asking them to pay the cheque amount within a
period of 15 days from the date of the receipt of the
notice. The accused failed to pay the amount to the
complainant.
6. On 15/11/2006 the complainant filed a complaint
being Criminal Complaint No.6076/06 in the Court of Chief
Judicial Magistrate, Vadodara, Gujarat against the accused
under Sections 138/142 of the NI Act. The Chief Judicial
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Magistrate, Vadodara, by order dated 15/11/2006 issued
summons to all the accused.
7. The accused filed applications before the High Court
under Section 482 of the Code Criminal Procedure for
quashing of the said complaint case. The High Court by
the impugned order dated 8/9/2011 allowed the petition
and quashed the said complaint. Being aggrieved by the
said order the complainant has approached this Court.
8. We have heard Mr. D.N. Ray, learned counsel for the
complainant and Mr. Giriraj Subramanium, learned counsel
for the accused. Counsel for the complainant submitted
that the High Court erred in coming to the conclusion that
the complaint does not disclose offence punishable under
Section 138 of the NI Act. Counsel submitted that the
High Court was wrong in holding that “stop payment”
instructions are not covered by Section 138 of the NI Act.
The High Court failed to notice authoritative
pronouncements of this Court which state that if a cheque
bounces because of “stop payment” instructions it would
constitute an offence under Section 138 of the NI Act.
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Counsel urged that impugned order must, therefore, be
set aside. Counsel for the accused, on the other hand,
supported the impugned order.
9. The High Court held that provisions of Section 138 of
the NI Act are attracted where a cheque is returned by the
bank on the ground that there is insufficient amount or
that the amount of cheque exceeds the amount arranged
to be paid from that account by an agreement made with
the bank. The High Court further held that the cheque in
question was returned on account of “stop payment”
instructions given by the accused vide letter dated
13/07/2006 in view of the fact that the complainant had
failed to discharge its obligations as per the agreement by
not repairing/replacing the damaged UPS system. The
High Court further observed that the complainant had not
disclosed complete facts as required under provisos (b)
and (c) of Section 138 of the NI Act. The High Court
concluded that the complaint did not disclose offence
contemplated under Section 138 of the NI Act. The High
Court, in the circumstances, quashed the complaint.
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10. The High Court, in our opinion, fell into a grave error
when it proceeded to quash the complaint. Even “stop
payment” instructions issued to the bank are held to make
a person liable for offence punishable under Section 138
of the NI Act in case cheque is dishonoured on that count.
In Modi Cements v. Kuchil Kumar Nandi 1 this Court
made it clear that even if a cheque is dishonoured
because of “stop payment” instructions given to the bank,
Section 138 of the NI Act would get attracted. This Court
further observed that once the cheque is issued by the
drawer a presumption under Section 139 must follow and
merely because the drawer issues a notice to the drawee
or to the bank for stoppage of the payment it will not
preclude an action under Section 138 of the NI Act by the
drawee or the holder of the cheques in due course.
11. Again in M.M.T.C. Ltd. and anr. v. Medchl
Chemicals and Pharma (P) Ltd. and anr. 2 this Court
reiterated the same view. What is more important is the
fact that this Court declared that the complaint cannot be
1 (1998) 3 SCC 249 2 (2002)1 SCC 234
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quashed on this ground. Relevant observations of this
Court read as under:
“… … …Even when the cheque is dishonoured by reason of stop-payment instructions by virtue of Section 139 the court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the “stop-payment” instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there were sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop-payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused. Thus a court cannot quash a complaint on this ground.”
12. In Laxmi Dyechem v. State of Gujarat and
ors 3 this Court reiterated the above view.
13. We find that the High Court has relied on M.M.T.C.
Ltd. and Modi Cements and yet drawn a wrong
conclusion that inasmuch as cheque was dishonoured
3 (2012) 13 SCC 375
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because of “stop payment” instructions, offence
punishable under Section 138 of the NI Act is not made
out. The High Court observed that “stop payment”
instructions were given because the complainant had
failed to discharge its obligations as per agreement by not
repairing/replacing the damaged UPS system. Whether
complainant had failed to discharge its obligations or not
could not have been decided by the High Court
conclusively at this stage. The High Court was dealing
with a petition filed under Section 482 of the Code for
quashing the complaint. On factual issue, as to whether
the complainant had discharged its obligations or not, the
High Court could not have given its final verdict at this
stage. It is matter of evidence. This is exactly what this
Court said in M.M.T.C. Ltd. Though the High Court
referred to M.M.T.C. Ltd., it failed to note the most vital
caution sounded therein.
14. The High Court also erred in quashing the complaint
on the ground that the contents of the reply sent by the
accused were not disclosed in the complaint. Whether
any money is paid by the accused to the complainant is a
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matter of evidence. The accused has ample opportunity to
probabilis his defence. On that count, in the facts of this
case, complaint cannot be quashed.
15. In view of the above, we set aside the impugned
order dated 08/09/2011 passed by the Gujarat High Court
in Criminal Misc. Application No. 1757 of 2007 with
Criminal Misc. Application No. 9158 of 2007. We direct the
Chief Judicial Metropolitan Magistrate, Vadodara to
dispose of the Criminal Complaint No.6076 of 2006 as
expeditiously as possible and, in any event, within a
period of one year from the date of receipt of this order.
16. The appeals are disposed of in the afore-stated terms.
……………………………………………..J. (RANJANA PRAKASH DESAI)
……………………………………………..J. (N.V. RAMANA)
NEW DELHI, August 22, 2014.
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