( 1 ) THIS revisional application under Section 482 of the Code of Criminal procedure (in short the Code) is aimed at quashing the criminal proceeding being complaint case No. C/609 of 2006 under Sections 138 and 141 of the Negotiable Instruments Act (hereinafter called the N.. Act), 1881 now pending before the learned Metropolitan Magistrate, 4th Court, Calcutta. ( 2 ) MR. Ashim Kumar Routh, the learned Advocate for the petitioners submitted that the complainant referred the matter of dispute between the financer complainant and hirer petitioners to the Arbitrator and the Arbitrator also passed an award which covered all the points including the dues of the complainant. The award was passed on the basis of claim application filed by the O. P. No. 1 under the Arbitration and Conciliation Act. Another application under Section 9 of the Arbitration and Conciliation Act was filed by the O. P. No. 1 before the learned 6th Judge, City Civil Court at ' Calcutta in Misc. Case No. 2076 of 2005. The petitioner has challenged the award no doubt by tiling a petition for setting aside the award. By the order of the learned Judge of the City Civil Court receiver was appointed to take possession of the vehicle. There was one hire purchase agreement between the petitioners and O. P. No. 1. The vehicle of the petitioner was stolen from Bihar and the driver lodged FIR at concerned police station in bihar. The petitioners submitted their claim before the Insurance Company. The claim of the petitioners before the Insurance Company is still pending. The petitioners requested the O. P. No. 1 to wait for few months and informed him that he would make the payment after receiving their claim amount from the Insurance Company. At the time of taking loan from the O. P. No. 1, they issued some post dated cheques and thereafter, they sent instruction to the Bank for "stop payment" and also informed the matter to o. P. No. 1. The O. P. No. 1 suppressed everything before the City Civil Court and obtained order and also suppressing everything lodged the complaint against the petitioners. ( 3 ) MR. Routh further submitted that five cheques were dishonoured as the petitioners clearly stated that after the award was passed by the learned Arbitrator the cheques cannot be encashed. The O. P. No. 1 suppressed everything before the City Civil Court and obtained order and also suppressing everything lodged the complaint against the petitioners. ( 3 ) MR. Routh further submitted that five cheques were dishonoured as the petitioners clearly stated that after the award was passed by the learned Arbitrator the cheques cannot be encashed. After the award was passed by the Arbitrator there cannot be any further liability of the petitioners for payment of dues of complainant. There was no element of section 138 as well as Section 141 of the N.. Act against the petitioners. Before lodging of complaint the petitioners duly informed the bank and the complainant about their instruction of "stop payment". ( 4 ) MR. Routh next contended that a parallel proceeding is not permissible. The award was passed on 13. 1. 06. In the month of February, 2006 the complaint was filed suppressing material facts. In the complaint the arbitration clause as well as passing of the award were not mentioned. After the award there was no existing liability or legal debt or subsisting dues. The petitioners filed an application before the learned Magistrate for discharge contending that in view of the aforesaid facts and circumstances there was no element of Sections 138/141 of the N.. Act against the petitioners and there was no ground to issue process but, the learned Magistrate without considering the facts and circumstances as well as principles of law dismissed the petition. In the award passed in favour of the complainant/o. P. No. 1, the learned Arbitrator has covered the entire amount of the loan including the amount of cheques which were dishonoured due to instruction of "stop payment". Continuation of the criminal proceeding is an abuse of the process of law as complaint was filed suppressing material facts and the proceeding should be quashed. In support of his contention Mr. Routh placed reliance on the decisions in sfafe of A. P. v. Golconda Linga Swami, reported in 2004 (6) SCC 522 , sfafe of Karnataka v. Pastor P. Raju, reported in 2006 (6) Supreme 167 , alpic Finance Ltd. v. P. Sadasivan, reported in 2001 (2) Supreme 69 , Asha agarwal v. Mohan Sharma, reported in 2004 (2) CHN 647 and K. K. Sidharthan v. T. P. Praveena Chandran, reported in 1996 (6) SCC 369 . ( 5 ) ON the contrary, Mr. ( 5 ) ON the contrary, Mr. Sandipan Ganguly, the learned Advocate for o. P. No. 1 submitted that the demand notice was dated 27. 12. 05 and the cause of action arose on 11. 1. 06. Thereafter, the complaint was filed within the statutory period of limitation. The award was dated 13. 1. 06 no doubt, but the complaint was filed after the award. This is a proceeding under section 138 of the N.. Act and cause of action under Section 138 of the n.. Act is completely different from the causes of action for which matter of dispute was referred to the Arbitrator. Under Section 139 of the N.. Act the presumption would be in favour of holder of the cheque. In a proceeding under Section 138 of the N.. Act question of mens rea does not arise. The accused petitioners have to rebut the presumption of Section 139 of the N.. Act by leading evidence. ( 6 ) MR. Ganguly further submitted that the papers annexed with the revisional application cannot be considered by this Court as such papers require assessment on the basis of evidence in the trial Court. In support of his contention Mr. Ganguly placed reliance on Sfafe of M. P. v. Awadh kishore Gupta and Ors. , reported in 2004 SCC (Cri) 353. He further submitted that the decision in K. K. Sidharthan v. T. P. Praveena Chandran (supra) cited by the learned Advocate for the petitioner on "stop payment" is no more a good law in view of the decision of the Hon*ble Apex Court in Modi cements Ltd. v. Kuchil Kumar Nandi, reported in 1999 SCC (Cri) 252. The decision in Asha Agarwal v. Mohan Sharma (supra) cited by Mr. Routh on parallel proceeding or arbitration award is also no more a good law in view, of the decision of the Hon'ble Apex Court in Trisuns Chemicals industry v. Rajesh Agarwal, reported in 2000 SCC (Cri) 47. ( 7 ) MR. Ganguly also contended that in a proceeding under Section 138 of the N.. Act dishonest intention, fraudulent intention, intention to deceive and cheat right from the beginning like a proceeding under sections 406 or 420 of the. P. C. do not arise and dishonest intention is not at all applicable in this proceeding. Proceeding under Section 138 of the N.. Ganguly also contended that in a proceeding under Section 138 of the N.. Act dishonest intention, fraudulent intention, intention to deceive and cheat right from the beginning like a proceeding under sections 406 or 420 of the. P. C. do not arise and dishonest intention is not at all applicable in this proceeding. Proceeding under Section 138 of the N.. Act depends upon certain circumstances and these are based mainly on papers. The moment a cheque is dishonoured, the holder of the cheque would serve a demand notice asking the person who issued the cheque to make payment of the dishonoured amount of cheque within 15 days and, after receipt of the demand notice, if the said person fails or neglects to make payment of the dishonoured cheque amount offence under Section 138 of the N.. Act would come into play. In support of his contention Mr. Ganguly placed reliance on few more decisions namely, state Firm Corpn. of India Ltd. v. Nljjer Agro Foods Ltd. . reported in 2006 (1) SCC (Cri) 609, M. Gurunathan v. R. Amutha, reported in 2006 (1) SCC (Cri) 786 and Fateh Chand Bhansali v. M/s. Hindusthan Development corporation Ltd. , reported in 2005 (1) C Cr LR (Cal) 581. ( 8 ) MR. S. S. Roy, the learned Advocate for the State submitted that this is a matter between private individuals and in the trial Court a complaint case is pending. He has nothing more to add arid he adopts or supports the view of Mr. Sandipan Ganguly. Mr. Roy further submitted that in view of the settled principles of law now-a-days there are materials to proceed with the trial of the complaint case under Section 138 of the N.. Act. ( 9 ) I have duly considered the submissions of the learned Advocates for the respective parties and perused the contents of the revisional application and the decisions placed before me by the learned Advocates for the parties. The fact of the case as it appears from the revisional application and the papers annexed thereto is that, the petitioners entered into hire purchase agreement with O. P. No. 1 for purchasing a Mahindra scorpio Car and took loan from O. P. No. 1. The monthly instalment was fixed at Rs. 18,700/- to be paid by the petitioners to the complainant w. e. f. 1st September, 2003. The monthly instalment was fixed at Rs. 18,700/- to be paid by the petitioners to the complainant w. e. f. 1st September, 2003. The total monthly instalment was 35 in number and last payment was made on 1st July, 2004. After registration, the car got the Registration No, WB-20g/2970. The car went to Munger in Bihar and driver was Hardeep Singh and when the car was within Banka District in bihar, the driver went to attend nature's call on the highway and when he returned he did not find the car and it was stolen. One F.. R. was lodged by the driver at Belhar P. S. The petitioners submitted their claim with the concerned Insurance Company and till date the claim was not settled and the petitioners did not receive the money from the Insurance Company. The petitioners informed the complainant about theft of the car and also informed that after receiving necessary claim from the Insurance Company they would make the payment. The complainant on the other hand illegally demanded a sum of Rs. 6,02,408/- from the petitioners and the petitioners on receipt of such letter dated 11. 9. 04 sent a reply on 13. 9. 04. Thereafter, by letter dated 5th November, 2004 the petitioners came to know that one partha Sarathi Ghosh was appointed as the Arbitrator by the O. P. No. 1 to adjudicate the dispute and the differences by and between the parties. ( 10 ) ON 7th February, 2005 the petitioners received a letter dated 18th January, 2005 issued by the Arbitrator enclosing a statement of claim filed on behalf of O. P. No. 1. The petitioners appeared before the Arbitrator on 19th February, 2005 and on 19th March, 2005 they filed their counter statement before the Arbitrator. The O. P. No. 1 obtained time to file rejoinder by 10th June, 2005 but rejoinder was not filed by O. P. No. 1 and it was filed on 12th August, 2005. The hearing before the Arbitrator was concluded on 7th October, 2005 but the award was not passed. During pendency of the arbitration proceeding the O. P. No. 1 filed an application under Section 9 of the Arbitration and Conciliation Act and the learned 6th Judge, City civil Court, Calcutta in Misc. Case No. 2076 of 2005 passed an order on 23. 9. During pendency of the arbitration proceeding the O. P. No. 1 filed an application under Section 9 of the Arbitration and Conciliation Act and the learned 6th Judge, City civil Court, Calcutta in Misc. Case No. 2076 of 2005 passed an order on 23. 9. 05 directing that a receiver be appointed without security over the said Mahindra Scorpio Car. The learned Judge also passed an order of injunction and other directions. The petitioners appeared before the City civil Court and contested the matter and the application was disposed of by order dated 24th March, 2006 directing the receiver to take possession of the vehicle in question with the help of local police, if necessary and to keep the vehicle in the custody of competent person until further order. ( 11 ) DURING pendency of the arbitration proceeding and the Misc. Case in the City Civil Court the O. P. No. 1 issued a notice under Section 138 (b) of the N.. Act on the petitioners demanding payment of rs. 1, 12,200/- and in default of payment threat was given to file the complaint. The petitioners sent a reply through their Advocate on 29th december, 2005 and informed the O. P. No. 1 that payment of the said cheques were stopped by the petitioners. On 23rd January they received a letter dated 13th January, 2006 from the Arbitrator enclosing a copy of his award dated 13th January, 2006. The said award was made and published directing the petitioners to make payment of Rs. 5,67,265/- covering the entire amounts of the cheques to O. P. No. 1 together with interest thereon @ 18% p. a. from 19th January, 2005 till realisation. The petitioners have filed an application under Section 34 of the Arbitration and Conciliation Act for cancelling and setting aside the Award and it has been registered as Misc. Case No. 227 of 2006 and the said matter is still pending. Thereafter, in the month of March, 2006 they received summons issued by the learned Metropolitan Magistrate, 4th Court, Calcutta showing institution of the complaint against them under Section 138 read with. Section 141 of the N.. Act. After receiving summons the petitioners appeared before the learned Metropolitan Magistrate and on 24th April, 2006 they filed an application praying for dropping/dismissing the complaint and discharging them. Section 141 of the N.. Act. After receiving summons the petitioners appeared before the learned Metropolitan Magistrate and on 24th April, 2006 they filed an application praying for dropping/dismissing the complaint and discharging them. The learned Magistrate by the impugned order dated 16th December, 2006 dismissed their application and also rejected their prayer for discharge and hence this revisional application. ( 12 ) THE submission of Mr. Routh that criminal proceeding is not maintainable as the award passed by the learned Arbitrator includes the entire dues ofo. P. No. 1 complainant including the entire amounts of the cheques together with interest, is not acceptable. The other submission of Mr. Routh that a parallel proceeding is not maintainable is without foundation and is not applicable in this matter. His contention that criminal proceeding is not maintainable,as the petitioners after receiving demand notice duly informed the complainant that they had issued instructions to bank relating to "stop payment" and after such instruction filing of complaint was bad in law, is also not acceptable. The decisions placed by Mr. Routh in order to strengthen his submissions namely, K. K. Sidharthan v. T. P. Praveena Chandran (supra) and Asha Agarwal v. Mohan Sharma (supra) are not at all apposite in this case and do not favour the petitioners. Other decisions cited by him namely, Alpic Finance Ltd. v. P. Sadasivan (supra), state of Karnataka v. Pastor P. Raju (supra) and State of A. P. v. Golconda linga Swami (supra) are also not applicable and if these decisions are construed properly the principle of law laid down therein would go against the petitioners. ( 13 ) IN Trisuns Chemicals Industry v. Rajesh Agarwal (supra) there was a criminal proceeding under Sections 415 and 420 of the. P. C. though there was existence of an arbitration clause in the contract for supply of goods between appellant company and another company. The Supreme court observed that the criminal prosecution cannot be thwarted merely because civil proceedings are also maintainable. It was held by the supreme Court that arbitration proceeding cannot thwart criminal proceeding and Arbitrator is not competent to adjudge an offence. In M. Gurunathan v. R. Amutha (supra) the Supreme Court held that if any defence on facts had been made then the same being a disputed question of fact it could not be made a ground for quashing the proceeding. In M. Gurunathan v. R. Amutha (supra) the Supreme Court held that if any defence on facts had been made then the same being a disputed question of fact it could not be made a ground for quashing the proceeding. The arbitration award is adjudication of claim between the parties over hypothecation agreement. The petitioners contention was that as the car was stolen and as their claim on the car was not yet settled by the Insurance company they were not in a position to make instalments against the car loan taken by them from the complainant O. P. No. 1. The financer namely, o. P. No. 1 when did not receive monthly payments after the last payment was made on 1st July, 2004 instituted a proceeding before the City Civil court under the Arbitration and Conciliation Act. Before the learned arbitrator the point for consideration was adjudication of the claim of the financer namely, the present O. P. No. 1 and the petitioner of Misc. Case no. 2076 of 2005 in the City Civil Court at Calcutta. In the present criminal proceeding the point for consideration would be whether the petitioners committed any offence under Section 138 of the N.. Act and, whether elements of offence has been established or not by the conduct of the petitioners after the cheques were dishonoured and payments were not made in spite of receipt of demand notice. These are questions of fact and can be considered and decided by a Court of Magistrate on the basis of oral and documentary evidence. The civil proceeding before the learned city Civil Court as well as the award passed by the learned Arbitrator can only decide the adjudication on claim of financer and the learned City civil Court or the learned Arbitrator cannot decide whether the act of the petitioners constituted elements of offence under Section 138 of the N.. Act. In view of the aforesaid reasons the criminal proceeding cannot be quashed and the Hon'ble Supreme Court accordingly laid down the clear guidelines in Trisuns Chemicals Industry v. Rajesh Agarwal (supra ). ( 14 ) THE instruction of "stop payment" sent by the petitioners to the bank and intimation to the O. P. /complainant about such instruction of "stop payment" while giving reply to the demand notice cannot absolve the petitioners from criminal liability. Mr. ( 14 ) THE instruction of "stop payment" sent by the petitioners to the bank and intimation to the O. P. /complainant about such instruction of "stop payment" while giving reply to the demand notice cannot absolve the petitioners from criminal liability. Mr. Routh in this connection placed reliance on K. K. Sidharthan v. T. P. Praveena Chandran (supra) where the supreme Court indicated that cheque presented by drawee after drawer's instruction to the bank to "stop payment" became known to the drawee and consequently cheque returned unpaid by the bank with the indorsement "payment countermanded by the drawer" cannot make the drawer liable under Section 138 of the N.. Act is no more a good law in view of the decision of the Hon'ble Supreme Court consisting of larger bench in Modi Cements Ltd. v. Kuchil Kumar Nandi (supra ). In this decision the Supreme Court clearly observed that "stop payment" instructions cannot obviate the offence under Section 138 of the N.. Act if otherwise made out. It was further held by the Supreme Court that neither such liability could have been avoided by giving notice to the payee or holder in due course prior to presentation of the cheque wherein the payee or holder in due course was advised not to present the same for encashment and he does present it and the cheque is returned as per "stop payment" instructions. The Supreme Court held that the decisions in Electronics trade and Technology Development Corporation v. Indian Technologists and Engineers, 1996 SCC (Cri)454) and K. K. Sidharthan v. T. P. Praveena chandran (supra) being contrary to the object and purpose of Sections 138 to 142 are overruled. It was clearly held that even if a cheque is dishonoured because of "stop payment" instruction to the bank provisions of Section 138 of the N.. Act would get attracted. The position of law is now clear and accordingly the submissions of Mr. Routh cannot be accepted. ( 15 ) IN view of the discussions made above there is no ground to quash the criminal proceeding. The complainant/o. P. No. 1 being the holder of the cheques is entitled to the presumption under Section 139 of the N.. Act and the accused petitioners are to rebut such presumption in the trial by leading proper evidence. ( 15 ) IN view of the discussions made above there is no ground to quash the criminal proceeding. The complainant/o. P. No. 1 being the holder of the cheques is entitled to the presumption under Section 139 of the N.. Act and the accused petitioners are to rebut such presumption in the trial by leading proper evidence. The learned trial Court on the basis of evidence of the complainant and the accused petitioners and materials- on-record would arrive at his own decision. ( 16 ) THE revisional application accordingly having no merit fails and is dismissed. There is no ground to interfere with the order dated 16th december, 2006 passed by the learned Magistrate rejecting the prayer of the petitioners for discharge. ( 17 ) THE observations made by this Court are only for the purpose of disposal of the revisional application and this Court did not enter into merits of the main offence under the provisions of the N.. Act and the learned magistrate would arrive at his own decision on the basis of evidence and materials-on-record without being influenced in any way by the observations of this Court.