1. Heard learned counsel for the parties.

2. The appellant bank, aggrieved by the rejection of its petition filed under Section 482 of the Code of Criminal Procedure before the High Court of Judicature at Rajasthan at Jaipur Bench declined to quash the order dated 24.02.2005, passed by the learned trial Judge in taking cognizance against the appellant Bank for the alleged offence under Section 138 of the Negotiable Instruments Act, 1881, hereinafter referred to as 'the Act', is before this Court questioning the correctness of the aforesaid orders urging various legal contentions.

3. The brief facts in nutshell to appreciate the rival legal submissions made by Mr. Sanjay R. Hegde, learned counsel appearing for the appellants and Mr. E.C. Agrawala, learned counsel appearing for respondent No.2, with a view to find out as to whether the impugned judgment and order warrant interference by this Court in exercise of its appellate jurisdiction. The appellant bank has issued a pay order in the name of Citi Bank, Account No.0007849141 of Jaya Enterprises. Placing strong reliance upon this document, learned counsel for the appellants submitted that the said pay order is neither a cheque nor a bill of exchange in terms of Section 138 of the Act to initiate the proceedings for dishonoring the same by the appellant. Therefore, he submits that the decision of this Court in the case of Punjab & Sind Bank v. Vinkar Sahakari Bank Ltd.,(2001) 7 SCC 721 is not applicable to the fact situation as the said case and the instant case are distinguishable. He also placed reliance upon the communication received through telex from the Citi Bank at New York on 04.03.2005, relevant portion of which is extracted hereinbelow:

"...REGARDING THE ABOVE MENTIONED PAYMENT, WE HAVE BEEN INFORMED BY THE BENEFICIARY BANK ING BANK/INTL NEDERALANDEN BANK NV. QUOTE: WE REFER TO YR MT 199 DTD 081104 WITH REF. CITI3080-05OCT04, PLS BE INFORMED THAT WE RETURN FUNDS TO ORD. CUSTOMER ON 191004"

4. Learned counsel for the appellants submits that in view of the aforesaid communication, the complaint filed by respondent no.2 against the appellants under Section 138 read with Section 142 of the Act is not maintainable for the reason that the proviso to Section 138 of the Act is not attracted to the fact situation and, therefore, the complaint filed by respondent No.2 is an abuse of the process of the court. Hence, he submits, this Court has the power to quash the summons issued after taking cognizance. He further placed reliance upon the decision of this Court in the case of State of Haryana v. Bhajanlal, 1992 Supp. (1) SCC 335, Para 102 which is relevant is extracted hereinbelow:

"105. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised." "1. Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused." "2. Where the allegations in the first information report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code."

"3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused." "4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code." "5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused." "6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party." "7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

5. Learned counsel for the appellants further submits that there is no transaction between the appellant bank and respondent No.2 merely because the pay order was issued in its name mentioning the drawee Citi Bank. Though respondent No.2-complainant is treated as the payee, even then there is no liability or debt between the appellant bank and respondent No.2 and, therefore the complaint is not maintainable on this ground also. Further, stop payment instruction after issuance of the pay order in the name of respondent No.2, on the basis of the instructions received from the Citi Bank, New York, relevant portion of which is extracted supra, does not attract Section 138 of the Act. The aforesaid important and factual legal contentions were not taken into consideration by the High Court while allowing the appeal.

6. Mr. Aggrawal, learned counsel for the respondents sought to justify the impugned judgment and order passed by the High Court by placing reliance upon the pay order. He submits that it is the respondent No.2 who is the payee and therefore, the contention of the learned counsel for the appellants is not tenable. He further submits that dishonour of the cheque at the instance of the appellants is an undisputed fact and the demand placed upon it is not complied with. Thereafter, the complaint was filed within 30 days from the date of service of notice upon it, as required under Section 138 of the Act. Therefore, according to him, the learned Magistrate has rightly taken cognizance and issued summons and the same is rightly not interfered with by the High Court by making certain germane observations in the impugned judgment and order. He further submits that the reliance placed by the learned counsel for the appellants upon the decisions of this Court referred to supra do not apply to the fact situation and prayed for dismissal of the appeal as the same does not call for any interference by this Court.

8. After hearing the learned counsel for the parties and perusing the material available on record, we came to the conclusion that it is an undisputed fact that the cheque was issued by the appellant bank in favour of the Citi Bank account of respondent No.2. It is also not disputed that there is no transaction between the appellant bank and respondent No.2. The payment covered in the said instrument was stopped on the instructions received from the Citi Bank, New York, at whose instance the said pay order was issued in the name of respondent No.2 and the appellant bank has acted on the basis of the instructions received as aforesaid. Therefore, there is no transaction between the appellant bank and respondent no.2 and, hence, the question of liability and debt in favour of respondent No.2 does not survive

for sustaining the complaint against the appellant bank. Thus, filing of the complaint, having regard to the factual position narrated supra which are undisputed, is a clear case of abuse of the process of power of the court in dragging the appellant-Bank to the criminal court as the facts of the instant case do not attract the rigors of proviso to Section 138 read with Section 142 of the Act. 9. In view of the aforesaid, accepting the submissions made by the learned counsel for the appellant-Bank and in view of the judgment of this Court in the case of Bhajan Lal (supra), we are of the considered view that the law laid down by this court in this case apply to the fact situation of the instant case. Accordingly, we set aside the impugned judgment and order passed by the High Court and quash the criminal proceedings initiated against the appellant-Bank and allow the appeal.