JUDGMENT : 1. The petitioner, by way of this petition filed under Section 561-A of the Code of Criminal Procedure, seeks quashment of the complaint as also the order dated 27th of February, 2016, whereby application of the petitioner/accused seeking his discharge in a complaint filed by the respondents under Section 138 of the Negotiable Instruments Act (“the Act” for short) has been dismissed by the Court of Passenger Tax, Srinagar (the Trial Magistrate). 2. With a view to appreciating the grounds of challenge taken by the petitioner, who shall be hereinafter referred to as the accused, it shall be appropriate to notice few relevant facts. 3. The respondents filed a complaint under Section 138 of the Act before the Trial Magistrate. The Trial Magistrate, after taking cognizance in the matter, issued process for the presence of the accused. 4. In response to the summons issued by the Trial Magistrate, the accused caused his appearance before the Trial Magistrate and filed an application seeking dismissal of the complaint and his discharge on the ground that before the actual presentation of the cheque by the complainant in the Bank, the accused had, in advance, requested the complainant to cancel all the cheques given by him and not to present the same for encashment in the Bank. It is, thus, claimed by the accused before the Trial Magistrate that on presentation of the cheque by the complainant after having been intimated/requested not to do so does not constitute an offence under Section 138 of the Act and, therefore, the complaint is liable to be dismissed. 5. The Trial Magistrate considered the application of the accused and vide its order dated 27th of February, 2016, rejected the same as having no merit. It is this order of the Trial Magistrate dated 27th of February, 2016, the accused is aggrieved of. 6. The impugned complaint as also the impugned order dated 27th of February, 2016, have been assailed by the accused, primarily, on the ground that Section 138 of the Act is not attracted if the person who has issued the cheque informs the payee that he should wait for some time so that the funds are arranged and requests the later not to present the cheque in the bank for encashment. The impugned order dated 27th of February, 2016, is further assailed by the accused on the ground that the Trial Magistrate has failed to appreciate that there was admission of the complainant that it had received the notice of intimation. The Trial Magistrate, without any reason or justification, rejected the application for discharge on the ground that the same had been filed by the accused at a belated stage. It is argued that if the complaint is not maintainable, the same can be challenged at any stage. 7. Mr. Sajjad Ashraf, learned Government Advocate, appearing for the respondents/complainant, contests the petition on the ground that the application moved by the accused before the trial court seeking his discharge was highly belated and was filed only with a view to protract the trial and avoid adverse verdict. He contests the argument of learned counsel for the accused and submits that by making a mere request to the payee of the cheque to cancel the cheque and not present it for encashment in the bank does not absolve the drawer of the cheque from his liability under Section 138 of the Act. 8. Having heard learned counsel for parties and perused the record, it is seen that the accused runs a SSI unit under the name and style of M/S Indian Pack Industries, at Industrial Complex Rangreth, Srinagar. The unit aforesaid went into losses and, therefore, same was declared ‘sick’ in the year 1996. Since the unit of the petitioner/accused was covered by the policy of rehabilitation framed by the then Government, the rehabilitation cost of the project of the petitioner was worked out by the complainant to the tune of Rs.98.16/ lacs, out of which 30% of the amount was released and disbursed by the complainant. As a security for the aforesaid amount, the accused claims to have deposited few undated blank cheques. As, it appears, the accused defaulted and, accordingly, cheque bearing No.219443 dated 4th of September, 2007, for an amount of Rs.1,22,646/ was put for encashment by the complainant so as to realize first instalment of the amount advance by way of soft loan. The cheque was dishonoured by the banker of the accused for the reason that it exceeded the arrangement. 9. The cheque was dishonoured by the banker of the accused for the reason that it exceeded the arrangement. 9. The complainant, vide its communication dated 15th of October, 2009, informed the accused that the cheque aforesaid has been dishonoured by the bank and, therefore, he should deposit the amount of the dishonoured cheque within a period of fifteen days positively. This communication was responded by the accused on 14th of November, 2009 and a request was made to the complainant to cancel all the cheques issued for repayment of soft loan till 100% progress was achieved and the unit was put on its revival track fully. The accused also voiced his other difficulties and also that the matter had been taken up by the association with the government for extension of moratorium period and repayment for ten years etc. etc. It is on the basis of this reply letter dated 14th of November, 2009, the accused claims that no cheque given by him to the complainant could have been deposited with the bank for encashment. It is, thus, submitted that despite the complainant having been requested to cancel all cheques, the complainant deposited the cheque No.219443 dated 4th of September, 2009 to be drawn at Ellaquai Dehati Bank, Branch Hyderpora Budgam. The cheque was dishonoured. The complainant, after serving a notice upon the accused, filed the impugned complaint, from where the impugned order dated 27th of February, 2016 has arisen. 10. The whole edifice of argument of the learned counsel for the accused is built on the judgment of the Supreme Court in the case of Electronics Trade and Technology Development Corporation Ltd. Vs. Indian Technologists and Engineers, (1996) 2 SCC 739 and the judgment of the Punjab & Haryana High Court in the case of Gopal Krishan and another vs. Rameshwar Dass, II (1996) BC 493. It may be noted that the judgment of the Punjab & Haryana High Court in the case of Gopal Krishan (supra) is rendered by a Singh Bench while relying on the judgment of the Supreme Court in the case of Electronics Trade and Technology Development Corporation Ltd.(supra). The judgment in the case of Electronics Trade and Technology Development Corporation Ltd. Stands overruled by a three Judge Bench of the Supreme Court in the case of Modi Cements Ltd. Vs. Kuchil Kumar Nandi, (1998) 3 SCC 249 . The judgment in the case of Electronics Trade and Technology Development Corporation Ltd. Stands overruled by a three Judge Bench of the Supreme Court in the case of Modi Cements Ltd. Vs. Kuchil Kumar Nandi, (1998) 3 SCC 249 . Paras 16 to 20 of the judgment are noteworthy and are, therefore, reproduced hereunder: “16. We see great force in the above submission because once the cheque is issued by the drawer a presumption under Section 139 must follow and merely because the drawer issues a notice to the drawee or to the bank for stoppage of the payment it will not preclude an action under Section 138 of the Act by the drawee or the holder of a cheque in due course. The object of Chapter XVII, which is intituled as “OF PENALTIES IN CASE OF DISHONOUR OF CERTAIN CHEQUES FOR INSUFFICIENCY OF FUNDS IN THE ACCOUNTS” and contains Sections 138 to 142, is to promote the efficacy of banking operations and to ensure credibility in transacting business through cheques. It is for this reason we are of the considered view that the observations of this Court in Electronics Trade & Technology Development Corpn. Ltd. [ (1996) 2 SCC 739 : 1996 SCC (Cri) 454] in para 6 to the effect “Suppose after the cheque is issued to the payee or to the holder in due course and before it is presented for encashment, notice is issued to him not to present the same for encashment and yet the payee or holder in due course presents the cheque to the bank for payment and when it is returned on instructions, Section 138 does not get attracted”, does not fit in with the object and purpose for which the above chapter has been brought on the statute-book. 17. The above view has been referred to in K.K. Sidharthan [ (1996) 6 SCC 369 : 1996 SCC (Cri) 1340] as is clear from paras 5 and 6 of the judgment. Paras 5 and 6 read as under: (SCC p. 371) “5. 17. The above view has been referred to in K.K. Sidharthan [ (1996) 6 SCC 369 : 1996 SCC (Cri) 1340] as is clear from paras 5 and 6 of the judgment. Paras 5 and 6 read as under: (SCC p. 371) “5. The above apart, though in the aforesaid case this Court held that even ‘stop payment’ instruction would attract the mischief of Section 138, it has been observed in para 6, that if ‘after the cheque is issued to the payee or to the holder in due course and before it is presented for encashment, notice is issued to him not to present the same for encashment and yet the payee or holder in due course present the cheque to the bank for payment and when it is returned on instruction, Section 138 does not get attracted’. 6. From the facts mentioned above, we are satisfied that in the present case cheques were presented after the appellant had directed its bank to ‘stop payment’. We have said so because though it has been averred in the complaint that the cheque dated 10-10-1994 was presented for collection on that date itself through the bank of the respondent which is Catholic Syrian Bank Ltd., from the aforesaid letter of the Indian Overseas Branch, we find that the cheque was presented on 15-10-1994 (in clearing). The lawyer's notice to the respondent being of 4th October, which had been replied on 12th from Cochi, which is the place of the respondent, whereas the Advocate who issued notice on behalf of the appellant was at Thrissur, it would seem to us that the first cheque had even been presented after the instruction of ‘stop payment’ issued by the appellant had become known to the respondent.” (emphasis supplied) With the above observations, the complaint under Section 138 of the Act was quashed. 18. The aforesaid propositions in both these reported judgments, in our considered view, with great respect are contrary to the spirit and object of Sections 138 and 139 of the Act. If we are to accept this proposition it will make Section 138 a dead letter, for, by giving instructions to the bank to stop payment immediately after issuing a cheque against a debt or liability the drawer can easily get rid of the penal consequences notwithstanding the fact that a deemed offence was committed. If we are to accept this proposition it will make Section 138 a dead letter, for, by giving instructions to the bank to stop payment immediately after issuing a cheque against a debt or liability the drawer can easily get rid of the penal consequences notwithstanding the fact that a deemed offence was committed. Further the following observations in para 6 in Electronics Trade & Technology Development Corpn. Ltd. [ (1996) 2 SCC 739 : 1996 SCC (Cri) 454] (SCC p. 742) “Section 138 intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a bank and induce the payee or holder in due course to act upon it. Section 138 draws presumption that one commits the offence if he issues the cheque dishonestly” (emphasis supplied) in our opinion, do not also lay down the law correctly. 19. Section 138 of the Act is a penal provision wherein if a person draws a cheque on an account maintained by him with the 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, on the ground either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it 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. The distinction between the deeming provision and the presumption is well discernible. To illustrate, if a person draws a cheque with no sufficient funds available to his credit on the date of issue, but makes the arrangement or deposits the amount thereafter before the cheque is put in the bank by the drawee, and the cheque is honoured, in such a situation drawing of presumption of dishonesty on the part of the drawer under Section 138 would not be justified. Section 138 of the Act gets attracted only when the cheque is dishonoured. 20. Section 138 of the Act gets attracted only when the cheque is dishonoured. 20. On a careful reading of Section 138 of the Act, we are unable to subscribe to the view that Section 138 of the Act draws presumption of dishonesty against drawer of the cheque if he without sufficient funds to his credit in his bank account to honour the cheque issues the same and, therefore, this amounts to an offence under Section 138 of the Act. For the reasons stated hereinabove, we are unable to share the views expressed by this Court in the above two cases and we respectfully differ with the same regarding interpretation of Section 138 of the Act to the limited extent as indicated above. (Emphasis supplied) 11. In view of aforesaid settled legal position, the plea of Mr. Hanan that since the accused had intimated to the complainant in advance for cancellation of the cheques issued by him, the subsequent presentation of the said cheques in the bank and their dishonour would not constitute an offence under Section 138 of the Act, is found to be grossly misconceived. 12. I am noting with sense of anguish that the learned counsel for the accused relied upon overruled judgments and this was not even pointed out by the counsel opposite. If this is the level of assistance from the learned counsel for the parties, there is every likelihood of this Court laying down wrong law and in the process doing injustice. I will leave it here but not without giving a warning to the learned counsel appearing for the parties to prepare their brief(s) diligently and verify the legal position before they project it before the Court(s). They should, in particular, verify as to whether the judgments relied upon by them continue to be good law that holds the field and do not cite the judgments which are overruled. 13. In view of the foregoing, I find no merit in this petition and the same is, accordingly, dismissed. 14. Parties to bear their own costs. 15. Copy of this order be sent to the trial court for information.