Presumption against signatory of a Cheque, Plea of lost cheque to be proved at trial: Del HC refuse quashing of summoning order for S. 138 NI Act offence

Delhi High Court: Asha Menon, J. refused to allow a petition filed under Section 482 CrPC seeking quashing of summoning order passed by the Metropolitan Magistrate, Patiala House Courts in complaint filed by the respondents 1 and 2 against the petitioner under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881.

A complaint was filed when the cheque issued by the petitioner for a sum of Rs 24 lakhs was dishonoured.

After the Trial Court had summoned the accused to face the trial for the offence under Section 138 of the NI Act, a petition under Section 482 CrPC was filed challenging the summoning order, which was disposed of vide orders by a Co-ordinate Bench of this Court, permitting the petitioner to raise all issues before the Trial Court before the Notice under Section 251 CrPC was served on the petitioner.

Thereafter, the petitioner moved an application “for recall of the summoning order/discharge of the accused”.

Analysis and Decision


High Court on perusal of the impugned order noted that it was a well-reasoned one and in respect of the contention that there was no averment in the complaint against the petitioner, the Trial Court noted that the ‘post-dated cheque’ was issued towards consultancy fees and was duly signed by accused 2 who was the petitioner before this Court.

The Supreme Court decision in SMS Pharmaceuticals v. Neeta Bhalla, (2007) 4 SCC 70, had made the signatory of the cheque responsible under Section 141(2) of the NI Act.

Plea that the cheque had been reported ‘lost’, it was for the petitioner to prove the same. He would have also gotten an opportunity to cross-examine the Bank Officials to establish that they had an obligation to have refused honouring the cheque on the ground that the cheque had been reported ‘lost’ by the drawer, to get the benefit of the decision in Raj Kumar Khurana v. State of (NCT of Delhi), (2009) 6 SCC 72. Hence, the trial Court was right in holding that the loss of cheque could be ascertained only during trial.

Therefore, since there was no error or perversity in the impugned order, no interference was called for by this Court in exercise of its inherent powers under Section 482 CrPC. [Rajeev Ranjan Sinha v. Sushil Kumar Saxena, 2022 SCC OnLine Del 1577, decided on 26-5-2022]


Advocates before the Court:

For the Petitioner:

Mr Siddharth Dutta and Ms Gunjan Malhotra, Advocates

For the Respondents:

Ms Manjeet Arya, APP for respondent No.3/State

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