Madras High Court
R. Jayalakshmi vs Rashida on 22 October, 1991
Author: Pratap Singh
Bench: Pratap Singh
JUDGMENT Pratap Singh, J.
1. The accused in C.C. No. 1481 of 1991 to C.C. No. 1484 of 1991 on the file of the Judicial Magistrate No. II, Poonamallee, has filed these petitions under section 482, Criminal Procedure Code, praying for calling for the records in the aforesaid cases and to quash the same.
2. The respondent in Criminal Original Petition No. 2778 of 1991 had filed the private complain in C.C. No. 1481 of 1991 against the petitioner, arraying her as the accused for offences under section 138, Negotiable Instruments Act. The allegations in it are briefly as follows :
The accused had dealings with the complainant. She had issued a cheque dated August 20, 1990, for Rs. 60,550.18 for the goods purchased by her on July 5, 1990, from the complainant. The complainant presented the cheque on September 15, 1990, for encashment. She was informed by a communication dated September 18, 1990, by her bank that the cheque was returned unpaid with an endorsement "refer to drawer" and "payment countermanded by the drawer". The accused did not have funds in the bank. On account of the same, the cheque was returned. The accused had intentionally issued the cheque to defraud the complainant without having sufficient funds. She sent a notice dated September 20, 1990, to the accused giving notice of dishonour and demanding payment. The accused has not chosen to comply with the demand of the complainant. The allegations in the reply sent by the accused that the goods were defective is false. The accused had not paid the amount within the period of 15 days. Hence the complaint.
3. In Criminal Original Petition No. 2779 of 1991, the respondent has filed a private complaint against the petitioner for an offence under section 138 of the Negotiable Instruments Act, in C.C. No. 1482 of 1991 on similar allegations with regard to the cheque dated September 20, 1990, for Rs. 48,833.75 which when presented for encashment was returned with an endorsement "refer to drawer" and "payment countermanded by the drawer". After giving the statutory notice and on non-payment of the amount, that complaint has been laid. In Criminal Original Petition No. 2780 of 1991, the respondent has filed a private complaint against the petitioner in C.C. No. 1483 of 1991 for an offence under section 138 of the Negotiable Instruments Act on similar allegations. In respect of the cheque dated August 25, 1990, for Rs. 27,763.10, in Criminal Original Petition No. 2781 of 1991, the respondent has filed a private complaint in C.C. No. 1484 of 1991 against the petitioner for an offence under section 138 of the Negotiable Instruments Act on similar allegations, in respect of the cheque dated September 15, 1990, for Rs. 44,488.72.
4. Mr. V. K. Sridharan, learned counsel appearing for the petitioner, would contend that, as per section 138 of the Negotiable Instruments Act, only in a case where the cheque was returned unpaid on the ground of insufficient funds or it exceeds the amount arranged to be paid, is an offence under section 138, Negotiable Instruments Act, made out and the cases on hand are not like that and hence an offence under section 138, Negotiable Instruments Act is not made out, and on that ground, the complaints are liable to be quashed.
5. Per contra, Mr. Ashok Menon, learned counsel appearing for the respondent, would contend that the allegations made in the complaint are sufficient to make out an offence under section 138, Negotiable Instruments Act.
6. For appreciating the rival contentions of both learned counsel, the material portion of section 138 of the Negotiable Instruments Act needs extraction. It reads as follows :
"Where any cheque drawn by a person on an account maintained by him with a 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, 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 and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both."
7. A plain reading of section 138 of the Act would clearly indicate that only in those two contingencies, viz., when the cheque was returned unpaid because of insufficiency of funds and/or it exceeds the amount arranged to be paid is an offence committed. In cases where the cheque is returned unpaid with the endorsement "refer to drawer", it has been held by this court that the endorsement "refer to drawer" is an euphemistic way of informing the payee that the drawer of the cheque has got no amount to his credit to honour the cheque. Such is not the case here. In all the complaints, the cheques were returned unpaid with the endorsements "refer to drawer" and "payment countermanded by the drawer". So, the reason for "referring to the drawer" has been pinpointed in the endorsement itself, viz., that payment was countermanded by the drawer. Such a case would not come within the ambit and scope of section 138, Negotiable Instruments Act.
8. Learned counsel for the respondent would rely upon the ruling in State of Bihar v. Murad Ali Khan , wherein the apex Court has held that, in proceedings under section 482, Criminal Procedure Code, the High Court has only to see whether a complaint prima facie disclosed the alleged offence and that it cannot go into the question whether the offence could be established by evidence or not. In the instant case, the allegations made in the complaint itself do not make out the offence under section 138, Negotiable Instruments Act, as long as the cheque was not returned for the reasons mentioned in section 138 of the Act which I have reproduced above.
9. In view of the above, all the petitions are allowed and proceedings in C.C. No. 1481 of 1991 to C.C. No. 1484 of 1991 on the file of the Judicial Magistrate No. II, Poonamallee, which are now pending before the IX Metropolitan Magistrate, Saidapet, Madras, are hereby quashed.