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IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2255 OF 2009 [arising out of SLP(CRL.) No. 2353 of 2009]

  M/S SACHMI CREATION ..... APPELLANT

VERSUS

  SMT. PUSHPA DEVI ..... RESPONDENT

O R D E R

Leave granted.

This appeal is directed against the order dated  

17th September,2008, passed by the learned Single Judge  

of the High Court of Delhi whereby she quashed the  

Complaint No. 624/1/2007 filed by the appellant under  

Section 138 of the Negotiable Instruments Act, 1881  

(for short 'the Act').

We  have  heard  the  learned  counsel  for  the  

parties.

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A perusal of the record shows that the appellant  

filed complaint dated 1st March, 2007, under Section  

138 of the Act alleging that the respondent had given  

ten  cheques  of  Rs  1  lac  each  in  discharge  of  her  

liability against the value of the goods but when the  

cheques were presented for encashment, the same were  

not honoured by the bank and were returned with memo  

dated 6th January, 2007.  On 1st May, 2007, the trial  

court  took  cognizance  and  issued  summons  to  the  

respondent who challenged the same by filing petition  

under Section 482 of the Code of Criminal Procedure  

(Cr.P.C.).  The High Court delved into the merits of  

the allegations made in the complaint, considered the  

respondent's assertion that the cheques were given as  

security under the marketing agreement and concluded  

that the provisions of Section 138 of the Act are not  

attracted in such a case.

In our view, the High Court is per se contrary  

to the law laid down by this court – State of Haryana  

v. Bhajan Lal (1992) Suppl 1 SCC 335, R. Kalyani v.

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Janak C. Mehta (2009) 1 SCC 516 and Mahesh Chaudhary v.  

State of Rajasthan (2009) 4 SCC 439.  While exercising  

power under Section 482, Cr.P.C., the High Court was  

not  justified  in  examining  the  merits  of  the  

allegations  made  in   the  complaint  and  record  an  

adverse finding on the issue of maintainability of the  

complaint.

For  the  reason  afore-stated,  the  appeal  is  

allowed  and  the  impugned  order  is  set  aside.   The  

concerned Court shall now proceed with the complaint  

and dispose of the same in accordance with law.  

    ..................J      [G.S. SINGHVI]

    ..................J     [ASOK KUMAR GANGULY]

NEW DELHI NOVEMBER 20, 2009.