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TMI Blog1998 (7) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... were taken on file in June, 1992, for the offence under Section 138 of the Negotiable Instruments Act, 1881. 3. The allegation in these complaints is that the petitioner, in pursuance of an agreement of sale dated May 5, 1989, issued two cheques to each of the parties in these two complaints towards the balance sale consideration and that when the cheques were deposited into the bank, the same were returned on account of insufficiency of funds and that in spite of the receipt of demand notice, the petitioner did not pay the cheque amount. 4. The petitioner, on receipt of summons filed applications, M. P. No. 1699 of 1996 in C. C. No. 3301 of 1992 and M. P. No. 1700 of 1996 in C. C. No. 3299 of 1992, for his discharge under Section 245 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the petitioner has no substance. 8. Before launching into the discussion on the issue raised before this court, certain dates and factual details are relevant to be noticed. They are as follows : (a) The respondents herein filed complaints against the petitioner for the offence under Section 138 of the Negotiable Instruments Act in June 1992. Immediately, on receipt of summons, the petitioner filed petitions for quashing of these proceedings in Crl. O. P. Nos. 2091 and 2092 of 1993 before this court and obtained stay. In those petitions, the very same ground was raised. However, by the orders dated October 12, 1994, this court, while disposing of the said petitions along with a batch of similar petitions, dismissed the same by observi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 138 of the Negotiable Instruments Act is to be tried as summons case. Therefore, the petitioner cannot maintain the petitions for discharge under Section 245 of the Criminal Procedure Code. 11. No doubt, it is true that in summons cases, on receipt of summons, he could file an application under Section 204 of the Criminal Procedure Code to drop the proceedings raising preliminary objection. But, in this case, that stage has been crossed. After several hearings, that too after four years, though the complaint was taken on file and summons were served in June, 1992, he has filed the applications for discharge only on July 6, 1996. In the meantime, as indicated earlier, the petitions for quashing were disposed of by this court as earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion. The averments in the complaints and the sworn statement would clearly show that there was an agreement for sale on May 5, 1989, that the sale consideration was fixed at Rs. 1,70,500 and that it was agreed to pay the entire sale consideration within one year from the date of execution of the said agreement. However, till November, 1991, the petitioner had paid only a sum of Rs. 1,35,000. In that context, the accused issued cheques on November 5, 1991, to the complainants towards the balance of sale consideration and towards interest on the belated payment. The reading of the said agreement referred to in the complaint would go to show that the petitioner was put in possession of the sale property and that he was nominated as a power o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The decision cited by learned counsel for the petitioner in Kumar (K.) v. Bapsons Foot Wear rendered by this court, in which it is held that mere issuance of cheques in the course of the business and its dishonour would not satisfy the requirements needed for making out an offence under Section 138 of the Negotiable Instruments Act, is not helpful to the petitioner, since, in the instant cases, there is a specific allegation that the cheques were issued towards balance of sale consideration of the property, the possession of which was handed over on the date of sale agreement itself. 21. In view of the above discussion, the contention of counsel for the petitioner would not be a valid one and consequently, these revisions deserve to be dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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