2003 INSC 1111
                                    SUPREME COURT OF INDIA

                                                  T.K. Koya

                                                      Vs.

                                                  K. Devaraj

                            (Y.K. Sabharwal and D.M. Dharmadhikari JJ.)

                                                 05.12.2003

                                                   ORDER

1. Leave granted.

2. The appellant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881
on the ground that the two cheques, one, in the sum of Rs. 2,50,000/- and the other in the
sum of Rs. 5,00,000/- were returned by the bank without payment with the endorsement that
the payment had been stopped by the drawer accused. The complainant further stated that he
had issued a legal notice dated 2nd May, 2001 to the accused. The information about
dishonour had been received by him from the bank on 24th April, 2001. Further averment
made in the complaint is : that a reply notice was received from the lawyer of the accused
with false allegations.

3. The complaint has been quashed by the High Court in exercise of power under Section
482 of the Code of Criminal Procedure on the ground that it was mandatory for the
complainant to say in clear terms that the accused had not paid the amount nor had he given
any other explanation withholding the payment on this aspect and there was no whisper in
the complaint and thus Section 138 of the Negotiable Instruments Act had not been
complied.

4. We are unable to sustain the impugned order of the High Court. It is contrary to the
averments made in the complaint as also to what was stated by the complainant in his pre-
summoning statement. It would be useful to reproduce para 7 of the complaint.

        "The complainant further stated that as per the instruction of the accused he had
        deposited the two cheques for collection through Indian Overseas Bank, Chengalpatu
        branch on 18.4.2001. The complainant state that both the cheques were returned to the
        complainant without payment, stating that payment stopped by the drawer, and the
        same was informed to the complainant on 24.4.2001 by this banker. The complainant
        stated that for the same he had issued a legal notice to the accused regarding the same
        dated 2.5.2001. The complainant further staled that a reply notice from the accused
        lawyer Mr. A. Deva kumar Advocate, Tindivanam dated 5.5.2001 received on
        10.5.2001, with false allegation."

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5. In the pre-summoning evidence statement to the aforesaid effect was made by the
appellant-complainant. In this view, there was no basis for the conclusion that the
complainant had not complied with the provisions of Section 138 of the Negotiable
Instruments Act, 1881. The exercise of power of quashing was unwarranted on the facts of
the case. At this stage we are not concerned with the defence of the accused. It would, of
course, be open to the accused to take such defence as may be available to him in accordance
with law.

6. The impugned order is accordingly set aside. The appeal is allowed and the complaint
remitted to the concerned Magistrate for its decision as per law.

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