Case Note & Summary
The petitioner, Manisha Salekar, filed a criminal writ petition challenging the order dated 17.12.2018 passed by the Additional Sessions Judge, Kalyan, which upheld the order dated 25.5.2018 of the 9th J.M.F.C., Kalyan, issuing process in Criminal Case No. 561/2018 under Section 138 of the Negotiable Instruments Act, 1881. The petitioner had issued a cheque to Respondent No. 1, Orian Multi Specialty Hospital, on 20th February 2018. On 21st February 2018, the petitioner sent an email requesting the respondent not to present the cheque, which was received on 22nd February 2018. Despite this, the respondent presented the cheque, and it was returned due to stop payment instructions. The petitioner argued that the cheque was not dishonoured for insufficient funds, and the complaint lacked an averment to that effect. The petitioner also claimed that the entire medical bill had been paid by depositing Rs. 1,55,000. The respondent contended that the Trial Court had rightly issued process after considering the complaint and material. The High Court examined the complaint and found no averment that the cheque was dishonoured for insufficient funds. The court held that the essential ingredients of Section 138 were not satisfied, and the process was liable to be quashed. The petition was allowed, and the orders of the courts below were set aside.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Stop Payment Instructions - The complaint lacked an averment that the cheque was dishonoured for insufficient funds. The petitioner had requested the respondent not to present the cheque and issued stop payment instructions. Held that in the absence of such averment, the essential ingredients of Section 138 are not satisfied, and the process issued by the Trial Court is liable to be quashed. (Paras 1-4)
Issue of Consideration
Whether the issuance of process under Section 138 of the Negotiable Instruments Act, 1881 is sustainable when the cheque was dishonoured due to stop payment instructions and there is no averment in the complaint that the cheque was dishonoured for insufficient funds.
Final Decision
The petition is allowed. The order dated 17.12.2018 passed by the Additional Sessions Judge, Kalyan in Criminal Revision No. 115 of 2018 and the order dated 25.5.2018 passed by the 9th J.M.F.C., Kalyan in Criminal Case No. 561/2018 are quashed and set aside.
Law Points
- Cheque dishonour due to stop payment instructions after request not to present
- absence of averment of insufficient funds
- Section 138 Negotiable Instruments Act
- 1881
Case Details
2019 LawText (BOM) (07) 115
Criminal Writ Petition No. 571 of 2019
Mr. N.R. Bafna for petitioner, Mrs. Kalyani Pathak for Respondent No. 1
Manisha Salekar alias Manisha Mane
Orian Multi Specialty Hospital through Dr. Prasanna Mahajan, State of Maharashtra
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Nature of Litigation
Criminal writ petition challenging the issuance of process under Section 138 of the Negotiable Instruments Act, 1881.
Remedy Sought
Petitioner sought quashing of the order issuing process in Criminal Case No. 561/2018.
Filing Reason
The petitioner alleged that the cheque was dishonoured due to stop payment instructions after requesting the respondent not to present it, and the complaint lacked an averment of insufficient funds.
Previous Decisions
The Trial Court (9th J.M.F.C., Kalyan) issued process on 25/5/2018, which was upheld by the Additional Sessions Judge, Kalyan on 17.12.2018 in Criminal Revision No. 115 of 2018.
Issues
Whether the complaint under Section 138 of the Negotiable Instruments Act, 1881 is maintainable when the cheque was dishonoured due to stop payment instructions and there is no averment of insufficient funds.
Submissions/Arguments
Petitioner: The cheque was not dishonoured for insufficient funds; the complaint lacks such averment. The petitioner had requested the respondent not to present the cheque and issued stop payment instructions. The entire medical bill was paid.
Respondent: The Trial Court rightly issued process after considering the complaint and material. There is compliance with Section 138.
Ratio Decidendi
For an offence under Section 138 of the Negotiable Instruments Act, 1881, the complaint must contain an averment that the cheque was dishonoured for insufficiency of funds. In the absence of such averment, the essential ingredients of the section are not satisfied, and the process is liable to be quashed.
Judgment Excerpts
there is no averment in the complaint that the cheque was dishonoured for insufficient funds in the account.
Since the cheque was not dishonoured for want of sufficient funds no process ought to have been issued by the Trial Court.
Procedural History
The petitioner filed a complaint under Section 138 of the Negotiable Instruments Act, 1881. The 9th J.M.F.C., Kalyan issued process on 25.5.2018. The petitioner filed Criminal Revision No. 115 of 2018 before the Additional Sessions Judge, Kalyan, which was dismissed on 17.12.2018. The petitioner then filed the present Criminal Writ Petition No. 571 of 2019 before the Bombay High Court.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
