BHAGEERATHY Vs. V BEENA

JUDGEMENT

(1.) Petitioner is the accused in S.T.56 of 1991 of the Court of the Additional Judicial Magistrate of the First Class, Palakkad. First respondent filed the complaint alleging offence under S.138 of the Negotiable Instruments Act, for short, 'the Act'. Main contention of the petitioner is that S.138 of the Act is not attracted as the cheque was returned unpaid with the bank's endorsement "payment stopped by drawer". It is argued that return of the cheque with the said endorsement would not come under the purview of S.138 and hence no offence has been made out against the petitioner, especially when there is no allegation in the complaint that the endorsement was made by the bank as there was no sufficient money in the bank.

(2.) S.138 of the Act provides for punishment only in case cheque was returned unpaid due to

(3.) In the complaint it is stated that the cheque was returned with the endorsement "payment stopped by the drawer". As the cheque was returned with the said endorsement and as there is no averment in the petition that the Bank dishonoured the cheque for want of adequate fund in the account of the drawer it is not possible to hold, that S.138 of the Act is attracted. The section provides for two eventualities only and no other. As the ingredients under S.138 is not disclosed in the complaint no offence under the said Section is made out.