Y. Bhaskar Rao, J.:— This petition is filed under Section 482 Cr. P.C to quash the proceedings in C.C No. 410 of 1990 on the file of the II Metropolitan Magistrate, Visakhapatnam.

2. The facts of the case are that: the second respondent herein filed a complaint against the petitioners herein alleging offences under Section 138 of the Negotiable Instruments Act and Section 420 I.P.C The first petitioner is a private limited company and the second petitioner is one of the Directors of the first petitioner company. The office of the second respondent is situated at Visakhapatnam, within the limits of ID Town Police Station, Visakhapatnam. The first petitioner is a private limited company dealing in export of Tea, Spices, Frozen Fishes, Meat, Fresh Mangoes and Rice etc., with their registered Office at Bombay and Executive Office at Calcutta. The petitioners, for the purpose of exporting Fresh/Chilled fish, chartered the Deep sea fishing trawler ‘Sagar Padmini’ from the second respondent. As per the agreement it was agreed between the petitioners and the second respondent that the petitioners have to pay hire charges of Rs. 1,00,000.00 for thirty days and towards the said charges the second respondent collected cheques bearing No. 147195 dated 18-6-1989 for Rs. 50,000.00 and another cheque for Rs. 1,00,000/- bearing No. 147196, Dated 18-7-1989. When the second respondent presented these two cheques through the S.B.I, Overseas Branch for payment, the cheques were dishonoured. The cheque for Rs. 50,000/- was dishonoured by the Bank with an endorsement dated 21-6-1989 as “Exceeds arrangement”. The other cheque issued for Rs. 1,00,000.00 was also dishonoured by the Bank on 31-7-1989 with an endorsement “payment is stopped by the drawer.” The period of charter expired on 24-8-1989 and the petitioners failed to exercise their option for extension by fifteen days prior notice or failed to redeliver the Vessel. The second respondent sent his Fleet Manager to Port Blair to bring back the Vessel to Visakhapatnam. It is stated that later the second petitioner sent a Telex message dated 22-8-1989 to the second respondent with a request to continue the Vessel with their Company upto 15-9-1989 and promised to pay Rs. 50,000.00 being the part of the arrears of hire charges of demand draft and the balance of Rs. 1,00,000.00 on or before 15-9-1989 and all other problems would be discussed only after payment of Rs. 1,00,000.00 by mid-September. But on account of the past conduct of the accused with regard to hire charges, the second respondent made it clear that he would not be able to discuss unless the entire rental due of Rs. 1,50,000.00 is paid and the Vessel is redelivered at Visakhapatnam. For the said Telex the second petitioner issued another reply dated 22-8-1989 by means of another Telex to the effect that they have decided to handover the Vessel immediately. Later, the second petitioner sent another Telex dated 25-8-1989 to the effect that they were trying to come down to Visakhapatnam on 26/27th August, 1989 for personal discussions. Accordingly, the second petitioner came down and discussions were held for extension of the Charter, but talks failed. Therefore, the second respondent filed the complaint under Sections 138 of Negotiable Instruments Act and Section 420 IPC. On the basis of the complaint, after examining the complainant, the court below has taken cognizance of the offences and registered the complaint as C.C No. 410/90.

3. The learned Counsel for the petitioners firstly contended that the allegations made in the complaint do not disclose any offence, much less an offence under Section 138 of the Negotiable Instruments Act (for short ‘the Act’.) There is nothing on record to show that the petitioners have committed the offences as alleged.

4. On the other hand, the Public Prosecutor contended that the complainant has given all the detailed facts and the said facts clearly constitute the offences under Section 138 of the Act and Section 420 IPC.

5. The facts stated in the complaint show that towards charges of the Vessel, the petitioners have issued two cheques - one for Rs. 50,000.00 and another cheque for Rs. 1,00,000.00. The cheque for Rs. 50,000.00, when presented for encashment, was returned with an endorsement “Exceeds arrangement.” The second cheque Rs. 1,00,000/- was also returned with endorsement “payment stopped by drawer”. Thus both the cheques, when presented for encashment, were dishonoured. The learned Counsel for the petitioners contended that the petitioners have issued Telex Messages dated 15-7-1989; 14-7-1989; 10-7-1989; 22-8-1989 and 25-8-1989 informing that the Vessel was unfit for Voyage and instructed his Bankers to stop payment. Therefore, when once they informed the Banker to stop the payment because of violation of the terms of contract, there is no debt to be paid under the cheques. Therefore, no offence under Section 138 of the Act is constituted. Here it is to be noticed that the first cheque issued for Rs. 50,000.00 was dishonoured with an endorsement “Exceeds arrangement”. Thus it is evident that the cheque was dishonoured only due to insufficiency of funds in the account of the petitioners, by the date of presentation of the cheque. Therefore, the fact clearly show that the first cheque was dishonoured only due to insufficiency of funds. Whether the notices were issued for stopping payment, as there are insufficiency of funds or because there was violation of the terms of the contract is a pure question of fact which has to be decided by the Court below after considering the evidence adduced by them, during the course of trial.

6. This Court and the Supreme Court has laid down that this Court while exercising its jurisdiction under Section 482 Cr. P.C will not consider the evidence and appreciate the same, as it is appreciated by the Lower Court. This Court will only look into the complaint and in case the facts stated in the complaint/charge-sheet do not make out a prima facie case or it is barred by any law or barred by limitation, then only the proceedings are liable to be quashed.

7. In this case, it is not the case of the petitioners that the complaint is barred by any law or barred by limitation. The ground taken is that because the petitioners have issued notice to stop payment and cheques were, therefore, dishonoured without payment, is not acceptable. Because, as stated supra, the first cheque was dishonoured due to insufficiency of funds, i.e, on the date when the cheque was presented for encashment, no sufficient funds were available in the account of the petitioners. Thus, the petitioners are aware that by the time of presentation of the cheque, there are no sufficient funds. Therefore, the contention of the petitioners that because they issued stop payment notice, the cheques were dishonoured cannot be accepted at this stage. This question has to be decided at the time of trial.

8. The learned Counsel for the petitioners relied on the judgment of the Supreme Court in Electronics Trade & Technology Development Corporation Ltd., Secunderabad v. Indian Technologists & Engineers (Electronics) (P) Ltd. (1) (1996) 2 SCC 739. In that case the Supreme Court while repelling the contention of the learned counsel for the respondent therein held as follows:

“The objection of Section 138 is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. Despite civil remedy, 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 drawn presumption that one commits the offence if he issues the cheque dishonestly. Once the cheque has been drawn and issued to the payee and the payee has presented the cheque and thereafter, if any instructions are issued to the bank for non-payment and the cheque is returned to the payee with such an endorsement, it amounts to dishonour of cheque and it comes within the meaning of Section 138. 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 presents the cheque to the bank for payment and when it is returned on instructions, Section 138 does not get attracted.”.

9. Thus the observation of the Supreme Court makes it clear that when the dishonour of the cheque was not for insufficiency of funds, but because stop payment instructions at the instance of the person who issued the cheque, then Section 138 will not attract.

10. The Supreme Court clearly laid down that Section 138 draws presumption that one commits the offence if he issues the cheque dishonestly. Once the cheque has been drawn and issued to the payee and the payee has presented the cheque and thereafter, if any instructions are issued to the bank for non-payment and the cheque is returned with such an endorsement, it amounts to dishonour of the cheque and it comes within the meaning of Section 138. 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 presents the cheque to the bank for payment and when it is returned on instructions, Section 138 does not attract. The above true proposition is laid by the Supreme Court. The Supreme Court while interpreting Section 138 laid down two principles as follows:

i) When once the cheque has been drawn and issued to the payee and the payee has presented the cheque and thereafter, if any instructions are issued to the bank for non-payment and the cheque is returned to the payee with such an endorsement, it amounts to dishonour of cheque and it comes within the meaning of Section 138.

ii) 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 presents the cheque to the bank for payment and when it is returned on instructions, Section 138 does not get attracted.

11. In the present case, as stated supra, the first cheque issued for a sum of Rs. 50,000.00 was returned with endorsement “Exceeds arrangement”, but not for the instructions of stop payment, issued by the person who issued the cheque, whereas the second cheque was dishonoured because ‘stop payment’ instructions were issued by the petitioners. Therefore, the questions that arise for consideration are, whether there were sufficient funds when the cheques were issued by the petitioners, whether the notices issued by the petitioners were received by respondent/complainant even before it submitted cheques for encashment. These are all questions to be decided after trial. There is no dispute that one cheque was dishonoured for want of funds and other cheque was presented after receipt of notices from the petitioners to the respondent/complainant. The respondent/complainant and the petitioners have to adduce evidence by examining witnesses and produce documentary evidence. Unless the entire process is completed, it cannot be said that documents are proved. The questions of fact, appreciation of evidence and admissibility and genuineness of documents cannot be decided in a petition filed under Section 482 Cr. P.C Therefore, the Judgment of the Supreme Court is not applicable to the facts of the present case.

12. The learned Counsel for the petitioners has also relied on a Division Bench Judgment of this Court in Syed Rasool & Sons v. Aildas & Company (2) 1992 (3) ALT 259. The facts of this case are quite different from the facts of the case on hand. Therefore the aforesaid decision will not apply to the facts of the case on hand. In this case the cheque was returned with an endorsement “referred to drawer”. Therefore, considering the facts of that case, the Court held that because an endorsement is made to the effect that there are no funds, it cannot be inferred that the cheque is returned because there are no sufficient funds. The facts of that case are quite different from the facts of the present case.

13. The learned counsel for the petitioners also relied on the Judgment of the Supreme Court in Trilok Singh v. Satya Deo Tripathi (3) (1979) 4 SCC 396 : AIR 1979 SC 850. In this case the purchaser launched criminal prosecution against the fmancer. The dispute was purely of civil nature and criminal proceedings initiated was an abuse of the process of the court and deserved to be quashed. In the instant case, the offence alleged against the petitioners is one under Section 138 of the Act and there is no dispute about the fact that the cheques issued by the petitioners were dishonoured. The case cited above, thus, has no relevance to the facts of the present case.

14. The learned Counsel for the petitioners has also drawn our attention to a Judgment of this Court in K. Chandrasekhar v. Thakur Construction Company, Hyderabad (4) 1993 (1) ALT (Cri.) 589. In that case prosecution against the accused is that huge amount of cost of construction of flats was due to the complainant as per the agreement between the parties. As litigation was purely of civil nature, it is liable to be quashed. But in the instant case, the offence alleged against the petitioners is one under Section 138 of the Act and there is no dispute about the fact that the cheques issued by the petitioners were dishonoured. As such this case also will not be of any help to the petitioners.

15. In support of his contentions, the learned counsel for the petitioners also placed before us a Judgment of this Court in Kalyani Modern Rice Mill v. The State (5) 1993 (3) ALT (Cri.) 660. In this case, the complainant and the accused were having day to day business in respect of paddy and running account. The petitioner obtained the signatures of the complainant on accounts sheets by misrepresentation. Dishonest intention cannot be presumed in such a transaction even if accounts are not correct and the accused owned some amounts to the complainant. There is no element of cheating. It is a clear case of civil action for which common law remedy has to be invoked by filing a suit for realisation of the amount. Criminal prosecution is an abuse of process of law and liable to be quashed. As stated supra, the facts of that case and the facts of the present case are quite different. As such that case also will not be of any help to the petitioners herein.

16. The next question is, whether the proceedings against the petitioners for the offence under Section 420 I.P.C is liable to be quashed. We have stated above, that in Para 8 of the complaint, it is specifically stated that the second accused right from the beginning was acting with the dishonest intention to have wrongful gain for her and her company and wrongful loss to the complainant by not paying the amounts and in pursuance of the said dishonest intention, without paying the amount, the second accused is representing the complainant that she would pay the amount and solve the problem. The complainant believed the said representations. Thus the ingredients required for constitution of an offence under Section 420 of Indian Penal Code are specifically alleged in the complaint. When the complainant baldly stated that the accused have committed an offence, without mentioning the required ingredients, this Court as well as the Supreme Court said that no offence is made out. But in the present case it is specifically stated that the second accused right from the beginning was acting with the dishonest intention to have wrongful gain for her and her company and wrongful loss to the complainant. Therefore, we are not able to accede to the contention of the learned counsel for the petitioner.

17. In view of the afore said facts and circumstances, we do not find any merit in the contentions raised by the learned Counsel for the petitioner and the same is accordingly dismissed. No costs. The dismissal of the petition will not bar the petitioner to raise all the grounds which are raised in this Court either at the trial or for plea of discharge.