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TMI Blog2011 (9) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... course of its business, the applicant Company received bulk orders from Gujarat Informatics Limited (for short GIL ) for supply of deskstop computers, printers, USP etc. Since the UPS was not being manufactured by the applicant Company, the same was to be procured from an approved vendor on the list of GIL. Since respondent no. 2, the complainant herein, was one of the approved vendors on the list of GIL for the supply of UPS, the applicant Company placed purchase orders with the complainant. Consequently, a Service Level Agreement enumerating the terms and conditions of contract came to be entered into between the applicant Company and respondent no. 2 complainant herein. 3.3. During the period between February 2006 to August 2006 the applicant Company placed purchased order and respondent no.2 supplied about 4097 systems valued at ₹ 94/lacs. The applicant Company received a complaint in about 38,00 UPS systems constituting about 90% of the total UPS systems supplied by the complainant. The applicant Company had issued a post dated cheque for ₹ 11,80,670/dated 15.07.2006 drawn on HSBC Bank, Bangalore to the complainant towards the supply of UPS systems pending a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The learned counsel, therefore, submitted that no offence as contemplated under Section 138 of the Act said to have been committed by the applicants. 4.1. The learned counsel for the applicants submitted that the notice dated 13.10.2006 and the reply dated 09.11.2006 clearly and unequivocally demonstrate that there was some civil dispute between the applicants and the complainant and that the complainant had failed to discharge its obligations under the Service Level Agreement. Thus, by not disclosing the complete and correct facts, the complainant has tried to mislead the Court by suppressing material facts and, therefore, the complaint is nothing but abuse of process of law. 4.2. In support of his say, Mr. Vakil has relied upon the following decisions :- (a) In the case of Hiten P. Dalal v. Bratindranath Banerjee reported in (2001) 6 SCC 16 , more particularly para 38, which reads as under : 38. The burden was on the appellant to disprove the presumptions under Section 138 and 139, a burden which he failed to discharge at all. The averment in the written statement of the appellant was not enough. Incidentally, the defence in the written statement that the fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that as payment of the cheques had been stopped by the drawer one of the ingredient of Section 138 was not fulfilled and thus the complaints were not maintainable. 18. Just such a contention has been negatived by this Court has, in the case of Modi Cements Ltd. v. Kuchil Kumar Nandi reported in (1998) 3 SCC 249. It has been held that even though the cheque is dischonoured by reason of 'stop payment' instruction an offence u/s. 138 could still be made out. It is held that presumption u/s. 139 is attracted in such a case also. The authority shows that 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 the stop payment instructions were not issued because of insufficiency or paucity of funds. If the accused show that in his account there was 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t noticed that the respondent was otherwise admitting the liability when the cheques were being issued. This was sufficient evidence to prove that there was a liability and as per the presumption under Section 139 of the Act, the cheques issued, therefore, were towards the liability even as per the version of the respondent. The relevant Section which is Section 138 of the Act giving the ingredients of the offence. In the opening words of the Section it is stated : Where any cheques drawn by a person on an account maintained by him with a bank for payment of any amount of money to any person from out of that account for the discharge in whole or in part, or any debt or other liability. (e) In the case of Zandu Pharmaceutical Works Ltd. Ors. v. Mohd. Sharaful Haque Anr. reported in (2005) 1 SCC 122 , more particularly para 13 and 15, which read as under : - 13. The factual position as highlighted above clearly goes to show that the complainant had not come to Court with clean hands. There was no explanation whatsoever for the inaction between 1995 and 2001. The High Court seems to have been swayed by the fact that the appellants have rejected claim of the compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not be a separate prosecution for his alleged contention for the alleged commission of offence. Therefore, in view of the nature of the complaint itself, it is quite obvious that the prosecution in question is a clear abuse of process of law. 5. Mr. Shah, learned counsel for the respondent no. 2 submitted respondent no. 2 had performed his obligations as per the agreement entered into between the parties. He submitted that though the goods were duly supplied as per the agreement, the applicant Company did not make the payment thereof and in order to avoid the liability of making payment, it has stopped payment of cheque. He submitted that there is no suppression of material fact or no wrong statements are made in the complaint inasmuch as the Notice which was issued u/s. 138 of the Act was served upon the applicants on 16.10.2006 and the same was replied only on 09.11.2006. However, the applicants could have replied the notice within 15 days from the date of receipt of notice if at all they wanted to reply the same. He submitted that both the transactions were independent transactions and the amount of ₹ 11/lacs has nothing to do with the amount of ₹ 5/lacs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved as under : Once the cheque is issued and on presentation is dishonoured, penal provision is attracted. Issuance of notice to the drawee or to Bank for stop payment would not preclude an action under Section 138 of the Act. (e) In the case of Gujarat Steel Tubes Ltd. v. Lloyd Steel Industries Ltd . reported in 1999 (1) GLH 448 . In the facts and circumstances of the present case, the complaints under Section 138 of the Act cannot be thrown out at the threshold on the ground that, because of issuance of notice, 'postdated cheques' which were only bills of exchange, before they became cheques, could not have been deposited in the Bank and, therefore, the provisions of Section 138 of the Act would not be attracted. The petitionercompany, by its unilateral act, cannot prevent the bills of exchange becoming cheques by giving notice not to deposit the cheques or instructing 'stop payment'. Such an interpretation would frustrate the object of the Act. Acceptance of the proposition that, before the due date of the postdated cheques, if the drawer gives intimation to the drawee not to present the cheques, the provisions of Section 138 will not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f process law and the same does not deserve to be sustained and requires to be quashed and set aside in exercise of powers u/s. 482 of Cr.PC. 8. Considering the facts of the case, it would be relevant to refer to a decision of the Apex Court in the case of State of Haryana Ors. V. Bhajan Lal Ors reported in 1992 Supp (1) SCC 335 wherein, the Apex Court has broadly set out the circumstances in which the High Court can exercise the power under Section 482 of Criminal Procedure Court. Paragraphs 102 and 103 thereof read as under: The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482 CrPC can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formula and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised ( 1) Where the allegations made in the first information report or the complaint, even if they are taken a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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