Judgment : H. S. PRASAD, J. ( 1 ) THIS application under Section 482 of the Code of Criminal Procedure has been filed for quashing the cognizance order dated 28-3-2003 passed by S. D. J. M. Koderma in complaint Case No. 60 of 2003. ( 2 ) FACTS giving rise to filing of this application are that O. P. No. 2 complainant filed a complaint petition before the learned Chief judicial Magistrate, Koderma alleging inter alia therein that her husband late Jagdish lal Chhabra and petitioner Lalan Prasad were running a company under the name and style of M/s. Super Steel Casting Ltd. as Directors of the Company along with other directors. But due to some mala fide intention, accused petitioner became hostile to the interest of the company and it appeared to her husband that accused was committing a lot of financial irregularities including defalcation in running of the business and its assets and its income. Her husband approached the petitioner many times and put pressure on him for accounting of the business but her husband was persuaded to come to Head Corporate Office situated in Patna on 1-4-2002 where the petitioner adopted violent attitude causing mental torture to her husband and got the door closed and pressurized her husband to sign certain papers or face grave consequences and thereafter her husband put signatures on some papers. Further case of O. P. No. 2- complainant is that due to the attitude of the petitioner, her husband went under high depression and subsequently died. Two days after the demise of her husband, on 10-4-2002 a meeting in presence of two arbitrators along with the directors of the Company was held in which petitioner as well as heir of late Jagdish Lal Chhabra also participated and thereafter Award was passed. Under the terms of Award, the petitioner had to get released the collateral security and hand over the title Deeds of the property kept as collateral security standing in the name of jagdish Lal Chhabra and his family, kept in punjab National Bank, S. S. I. Branch, Patna for taking loan in the name and in favour of m/s. Super Steel Casting Ltd. by 10-8-2002 and on failure of the accused to do so within the stipulated period, the accused will be liable to pay Rs. 55 lakhs to the complainant - O. P. No. 2. 55 lakhs to the complainant - O. P. No. 2. The petitioner issued post dated cheque No. 9115 dated 10-8-2002 for rs. 55 lakhs drawn on Central Bank of India, chiraiya Tand Branch, Patna in favour of the complainant, but when petitioner did not comply with the terms of the said Arbitration award on or before 10-8-2002, the aforesaid cheque was presented for collection at complainants Bank, Union Bank of india, Jhumritalaiya Branch on 4-9-2002 but the cheque was dishonoured by the Central bank of India, Chiraiya Tand Branch, patna which was presented in Central Bank of India, Chiraiya Tand Branch, Patna on 17-10-2002 for encashment but cheque was dishonoured by the petitioners Bank Central bank of India, Chiraiya Tand Branch, patna on the ground that payment stopped by the drawer, but there was not sufficient fund in the Bank Account of the petitioner. The O. P. No. 2-complainant was intimated by her Bank, Union Bank of India, jhumritalaiya Branch on 20-11-2002. Further, complainantsent a notice through registered post to the petitioner through her lawyer Sheo Shankar Prasad, Advocate on 3-12-2002 demanding the payment of the said cheque as per provisions of Section 138 n. I. Act, 1881, but the petitioner got registered notice delayed and it was returned with endorsement not met, although it is stated that the petitioner was all through present on the address. After return of the notice, deepak Chhabra, son of the complainant, met petitioner and told about the dishonour of the cheque and asked to pay the cheque amount but the petitioner promised that the cheque would be honoured by 2nd of January 2003 on presentation. The petitioner made a telephonic call to the complainant, but when it was again presented on 6-1-2003, the same was again dishonoured with a memo payment stopped by the drawer. Although petitioner had no sufficient fund in the bank. Thereafter O. P. No. 2 complainant sent a notice through registered post through her lawyer Sri Ganesh, Advocate on 15-1-2003 for payment of the said cheque amount and petitioner received notice on 20-1-2003 but paid nothing till the date of filing of this complaint case. Although petitioner had no sufficient fund in the bank. Thereafter O. P. No. 2 complainant sent a notice through registered post through her lawyer Sri Ganesh, Advocate on 15-1-2003 for payment of the said cheque amount and petitioner received notice on 20-1-2003 but paid nothing till the date of filing of this complaint case. There was no sufficient fund in the account of the petitioner-accused on the date and so the accused knowingly and deliberately directed the Bank to stop payment of the cheque and, therefore, O. P. No. 2- complainant filed a case under Section 138 N. I. Act. Further case of the O. P. No. 2 complainant is that as per decision of the arbitration, petitioner has to pay Rs. 35 lakhs for the transfer of shares of the complainant, her husband and her sons. The complainant and her sons transferred their shares in the Company m/s. Super Steel Casting Ltd. to the accused person Lalan Prasad but the accused person paid only Rs. 13,50,000/- (rupees thirteen lakhs and fifty thousand) and assured to pay later on but the petitioner accused became dishonest and not paid the rest amount of Rs. 21,50,000/- (rupees twenty one lakh and fifty thousand) and in spite of several requests, he committed offence under sections 420 and 406 IPC. ( 3 ) ON the other hand, learned counsel for the complainant appeared and submitted that after due inquiry under Section 202 cr. P. C. , cognizance in the case has been taken and this quashing application is not maintainable at all. It was further pointed out that it cannot be said that there was no existing debt or liability and these are matters which should be considered at the stage of trial. It was further pointed out that complainant has got no knowledge about complaint case No. 16 of 2003. ( 4 ) LEARNED counsel appearing for the petitioner submitted that the complainant has filed a case that cheque No. 9115 dated 10-8-2002 for Rs. 55 lakhs, was a post dated cheque issued to the complainant as collateral security for the release of Title Deeds, etc. ( 4 ) LEARNED counsel appearing for the petitioner submitted that the complainant has filed a case that cheque No. 9115 dated 10-8-2002 for Rs. 55 lakhs, was a post dated cheque issued to the complainant as collateral security for the release of Title Deeds, etc. and when by 10-8-2002 petitioner failed to get collateral security released and failed to hand over the title Deeds of the property kept as collateral security standing in the name of Late Jagdish Lal Chhabra, then after 10-9-2002, cheque was presented before the Bank for encashment, but the banker informed the complainant that cheque was dishonoured as the petitioner has stopped payment. Thereafter notice was sent to the petitioner which was delayed by the petitioner in collusion with the postal peon in and it was returned with the endorsement of the postal peon not met. Thereafter her son went to the petitioner and informed him that the cheque has been dishonoured and the petitioner again asked him to present the cheque in the month of January 2003 and the cheque was again presented on 4-1-2003 but it was again dishonoured with the endorsement payment stopped. Thereafter, again notice was sent which was received by the petitioner but he did not make payment within the stipulated date and thereafter complainant has lodged this complaint case, butthe date on which this Post dated cheque was issued, there was no subsisting liability or debt to be made by the petitioner. In this connection, reliance has been placed on 1999 (6) CTC 424 wherein it has been held that in the facts and circumstances of the case, provision of Section 138 of Negotiable Instruments Act is not attracted para-8 of the aforesaid judgment is quoted hereinbelow:"8. Therefore, on. the date when the cheque was handed over, there was no legally enforceable debt or other liability. An undated cheque for Rs. 35 lakhs was handed over as a security for the purpose of the contract. It was not handed over with the intention of making it as an instrument of immediate negotiation to discharge a subsisting liability or debt. Thus, this is a case where one of the parties to the contract had obtained a signed undated cheque for Rs. 35 lakhs as a security. It was not handed over with the intention of making it as an instrument of immediate negotiation to discharge a subsisting liability or debt. Thus, this is a case where one of the parties to the contract had obtained a signed undated cheque for Rs. 35 lakhs as a security. As dispute arose between the parties, the cheque is now utilized by the complainant to resort to Section 138 of the Act by filling in a date convenient to him". Reliance has further been placed upon 2000 Cr. L J 1988 wherein it was held that case is purely of civil nature. In this connection, para -14 of the judgment may be quoted hereinbelow:"14. This Court relies on the decision cited by Mr. Majumdar of the High Court of madras (supra) 1999 Cur Cri R 424 (sic), wherein a principle is laid down that to attract s. 138 of the Negotiable Instruments act. It must be pointed out that there was subsisting liability or debt on the date when the contract was entered into. In that given case before the High Court of Madras, the contract expressly made it clear that the cheques were handed over as security. In this case, it is clear from the agreement entered into between the parties that after borrowing the money, making a statement to repay the same at some future date, the cheques were issued for one performance. Therefore, the transaction from its very nature or from the intention of the parties, as reflected in the agreement executed between the parties, is purely of a civil nature, for which a civil suit has already been filed. The very fact that the payment was agreed to some future date and there was no debt or liability on the date of delivery of the cheques, will take the case out of the purview of the Section 138 of the Negotiable instruments Act. "further Para 17 of the Judgment is also quoted hereinbelow :"17. Therefore, the accused has right to approach the High Court at any stage for quashing the allegations that complaint prima facie does not disclose any offence. "further Para 17 of the Judgment is also quoted hereinbelow :"17. Therefore, the accused has right to approach the High Court at any stage for quashing the allegations that complaint prima facie does not disclose any offence. In such circumstances, when it appears to the High Court under Section 482 of the code that complaint does not disclose any offence, it has ample powers to quash the proceedings and the complaint and accused need not in all cases be relegated to the learned Magistrate directing the accused to file proper application for discharge or dropping of the proceedings. As discussed above, the complaint filed under Section 138 of the negotiable Instruments Act in this case discloses no criminal liability as envisaged under section 138 of the Act and, therefore, the complaint is required to be quashed. " ( 5 ) FROM the discussions made above and considering the case laws relied upon, I am of the view the provision of Section 138 of negotiable Instruments Act, which is quoted hereinbelow,"138. Dishonour of cheque for insufficiency, etc. of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that if exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both : provided that nothing contained in this section shall apply unless (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, (within thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. "is not attracted in view of the fact that there was no subsisting liability or debt on the date of issue of cheque, as the cheque no. 9115 was a post dated cheque given to the complainant as collateral security and, therefore no case is made out under Section 138 of the Negotiable Instruments Act. Further, so far as other Sections such as 406 and 420 IPC are concerned under which cognizance has been taken, it has to be shown that there was ulterior motive of cheating and when that ulterior motive of cheating is shown, then case will be maintainable under these Sections and when there is breach of the terms of agreement, then there is no criminal liability and the cognizance taken against the petitioner in such a situation is bad in law. Reliance in this connection may be placed upon 2001 (2) East Cri C 353 (Pat ). ( 6 ) PETITIONER again filed supplementary affidavit and submitted that some forgery has been committed by the complainant. It was pointed out that initially the complaint petition with only first part of the allegation was filed and there was no second part of the allegation such as transfer of shares, etc. in favour of M/s. Super Steel Casting Limited. It was submitted that serious manipulation have been made to such an extent that original page No. 6 of the complaint petition, which have been filed on 27-2-2003, had been changed and in its place, a new page No. 6 had been substituted adding allegation of only part payment of rs. 13,50,000/- and non-payment of remaining amount of Rs. 35,00,000/- in the subsequently filed complaint petition. 13,50,000/- and non-payment of remaining amount of Rs. 35,00,000/- in the subsequently filed complaint petition. It was further pointed out that it will be evident from the copies of two complaint petition, certified copies of which were obtained by the petitioner from the office of learned Chief judicial Magistrate, Koderma. It was further pointed out that if page number 6 of instant complaint petition and page number 6 of annexed copy of the complaint petition is compared, then it will be seen that in previously filed complaint petition, only one paragraph was written and there was no such allegation or averment about payment of Rs. 35,00,000/- or so, but in the subsequently changed page No. 6, it willappear that one part has been added containing allegation about non-payment of Rs. 35,00,000/- and about payment of Rs. 13,50,000/- out of due amount of Rs. 35,00,000/- and this paragraph was not there in the original complaint petition and by forgery and manipulation, this paragraph in connivance with the officials of Civil Court has been added. It was further pointed out that page No. 6 of both the original and substituted page bears seal with the same handwriting of the date of the filing of complaint petition and thus, complainant has also committed forgery along with Advocate. ( 7 ) CONSIDERING all the circumstances and materials on record, no case under any of the Sections is made out against the petitioner. In the result, this application is allowed and the cognizance order dated 38-3-2003 passed by S. D. J. M. , Koderma in Complaint case No. 60 of 2003 is hereby quashed. Application allowed. --- *** --- .