Neutral Citation No. - 2025:AHC:12855 Court No. - 77 Case :- APPLICATION U/S 482 No. - 32324 of 2024 Applicant :- M/S Dream Home Constructions Llp And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Bhuvnesh Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Arun Kumar Singh Deshwal,J. 1. Heard Sri Bhuvnesh Kumar Singh, learned counsel for the applicants and Sri Pankaj Srivastava, learned AGA for the State. 2. The present 482 Cr.P.C. application has been filed to quash the entire proceedings of Complaint Case No.3950 of 2024, Jitendra Kumar Vs. M/s Dream Home Construction LLP and another, under Section-138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act, 1881'), Police Station-Hariparvat, District-Agra, pending before A.C.J.M., Court No.5, District-Agra, as well as summoning order dated 24.04.2024. 3. Contention of learned counsel for the applicants is that cheque in question was not issued in discharge of any liability, the same was given towards advance payment to purchase the house of the complainant. When the complainant did not execute the sale deed then the applicants instructed his bank to stop the payment of cheque in question. In support of his contention, learned counsel for the applicants has relied upon the judgement of the Apex Court in the case of Indus Airways Private Limited And Others Vs. Magnum Aviation Private Limited And Another reported in (2014) 12 SCC 539, wherein the Apex Court in paragraph no.9 has observed that to attract the liability u/s 138 of the Act, 1881, there must be legally enforceable debt or other liability. 4. Per contra, learned AGA has vehemently opposed the prayer on the ground that cheque in question was returned with the endorsement 'fund insufficient' not on the ground of 'stop payment'. Therefore, contention of learned counsel for the applicants is untenable in the eyes of law and there is no illegality in the impugned proceeding. 5. After hearing the submission of learned counsel for the parties and on perusal of record, it appears that in paragraph no.1 of the complaint, it is specifically mentioned by the complainant that the applicants had purchased his house no.20/211, Jaipur House, Ratanmuni Marg, Agra and in discharge of liability of part payment, the applicants have issued a cheque in question then the same was presented before the bank but it was returned on 06.01.2024 with the endorsement 'fund insufficient'. This fact shows that the averment of the applicants that he had instructed his bank to stop the payment is prima facie incorrect. 6. So far as the contention of learned counsel for the applicants that no sale deed was executed, therefore, cheque given as advance payment cannot be said to be issued in discharge of any liability is misconceived because in paragraph no.1 of the affidavit, it is clearly mentioned that applicants have purchased the house of the opposite party no.2. Even otherwise, these grounds can be raised during trial being a disputed question of fact. 7. It is apposite to mention that the Apex Court in the case of Lafarge Aggregates And Concrete India Private Ltd. Vs. Sukarsh Azad And Another reported in 2014 (13) SCC 779 has observed in paragraph no.8 that if any cheque is returned by the bank with the endorsement 'refer to drawer', 'exceeds arrangements' and instruction for 'stop payment' and like other usual endorsement, it amounts to dishonour within the meaning of Section 138 of the Act, 1881. Therefore, after issuance of notice, if the payee or holder in course does not make payment then the statutory presumption would be of the dishonest intention. Paragraph no.8 of the said judgement is being quoted as under: "8. The object of bringing Sections 138 to 142 of the Negotiable Instruments Act on statute appears to be to inculcate faith in the efficacy of banking operations and credibility in transacting business of negotiable instruments. Despite several remedies, Section 138 of the Act is 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 induces the payee or holder in due course to act upon it. Therefore, once a cheque is drawn by a person of an account maintained by him for payment of any amount or discharge of liability or debt or is returned by a bank with endorsement like (i) refer to drawer, (ii) exceeds arrangements, and (iii) instruction for stop payment and like other usual endorsement, it amounts to dishonour within the meaning of Section 138 of the Act. Therefore, even after issuance of notice if the payee or holder does not make the payment within the stipulated period, the statutory presumption would be of dishonest intention exposing to criminal liability." 8. In view of the above, this court is of the opinion that there is no illegality in the impugned proceeding and the grounds raised by the applicants are his defence and also the disputed question of fact that can be raised during trial. 9. Accordingly, the present application is dismissed. Order Date :- 24.1.2025 S.Chaurasia Digitally signed by :- SHUBHAM CHAURASIA High Court of Judicature at Allahabad