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Tuesday, March 24, 2015

Sec.138 of N.I.Act - "payment stopped by the drawer" - High court quashed the complaints - Apex court held that this Court has already held that instruction of "stop payment" issued to the banker could be sufficient to make the accused liable for an offence punishable under Section 138 of the N.I. Act - High court committed wrong and allowed the appeals - 2015 SC msk Law Reports


 When
      the cheques were presented for collection the same were received back,
      dishonoured by bankers with the endorsement - "payment stopped by  the
      drawer".  
Notice  of  demand  dated  9.10.2006  was  issued  by   the
      complainant to the respondent no.1 but she failed to make the  payment
      of the amount mentioned in the cheques, i.e., total  Rs.1,79,86,357/-.
      Instead, she sent reply to the notice disputing liability to pay.
 On
      this, complainant filed twenty criminal  complaints  mentioned  above,
      against the respondent no.1 with  regard  to  the  offence  punishable
      under Section 138 of the N.I. Act.

Accused version :-
she was Re-Distribution Stockist
      (RDS) of watches manufactured by the appellant.  The business with the
      appellant was done till September, 2003 on  "cash  and  carry"  basis.
      The accused further pleaded in the petitions  filed  before  the  High
      Court under Section 482 of the Code of Criminal Procedure, that  after
      2003 the appellant company used to collect cheques towards the  amount
      covered by distinct invoices with respect to various consignments  for
      securing payment of amount covered by the invoices.
 since the cheques were given as security, as such there
      was no liability to make the  payment,  and  the  ingredients  of  the
      offence punishable under Section 138 of the N.I Act were not made out.
High court order
The High Court accepted the plea of the accused (respondent no.1)  and
      quashed the criminal complaint cases.  Hence,  these  appeals  through
      special leave.

Apex court held that 

 in the case of Pulsive Technologies P. Ltd.
      this Court has already held that instruction of "stop payment"  issued
      to the banker could be sufficient to make the accused  liable  for  an
      offence punishable under Section 138 of the N.I. Act. 
Earlier also in
      Modi Cements Ltd. , this Court has  clarified
      that if a cheque is dishonoured because of  stop  payment  instruction
      even then offence punishable  under  Section  138  of  N.I.  Act  gets
      attracted.

  we find that the  High  Court  has
      committed grave error of law in quashing the criminal complaints filed
      by the appellant in respect of offence punishable under Section 138 of
      the N.I. Act, in exercise of powers under Section 482 of the  Code  of
      Criminal Procedure by accepting factual defences of the accused  which
      were disputed ones.
 Such defences, if taken before trial court, after
      recording of the evidence, can be better appreciated.
Allowed the appeals - 2015 S.C. MSKLAWREPORTS

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