THOMAS VARGHESE Vs. P JEROME

JUDGEMENT

(1.) This is a petition filed under S.482 of the Code of Criminal Procedure for quashing the complaint in C.C.468/1990 on the file of the Judicial Magistrate's Court, Punalur. Learned counsel representing the petitioner canvassed the correctness of the decision in Calcutta Sanitary Wares v. Jacob ( 1991 (1) KLT 269 ). Consequently a learned Single Judge referred the petition to Division Bench for disposal.

(2.) Before dealing with the question of law raised, we consider it advantageous to refer to the averments made by the complainant before the Court below. They are in the following terms.-Accused entered into an agreement for sale of his property with the complainant on 21-3-1989. In pursuance of that agreement, accused received Rs.21,001/- in three instalments. Since the contract fell through, he issued cheque dated 8-12-1989 bearing No.787656 drawn on the Cheppad Branch of the Lord Krishna Bank for repayment of the amount. Thereafter with the intention of cheating the complainant and to make unlawful enrichment to himself, the accused caused the issuance of a lawyer's notice on 25-9-1989 alleging incorrect facts. By the intervention of mediators, accused agreed to remit sufficient amount in the bank so as to honour the cheque. The complainant agreed to forgo interest on the amount. Contrary to this agreement, without remitting the amount in the bank for honouring the cheque, accused informed the bank to stop payment of the amount covered by the cheque. Complainant presented the cheque through the Punalur Branch of the Canara Bank for encashment. That cheque was dishonoured by memo dated 4-4-1990 stating "Payment stopped by the Drawer". The complainant proceeded on to slate that the accused had no funds with his bank either on 8-12-1989 or on any subsequent date and so he issued stop memo to the bank. When the cheque was dishonoured, a lawyer's notice was sent to the accused on 18-4-1990 requiring him to pay the amount covered by the cheque. The notice was received by the accused on 20-4-1990. Accused did not pay the amount. Hence liable for offences under S.138 of the Negotiable Instruments Act, hereinafter referred to as "the Act", and S.420 of the Indian Penal Code.

(3.) For a proper understanding of the provisions contained in S.138 of the Act, we read the same: