P K MOHAMMED RASHEED Vs. STATE OF KERALA

JUDGEMENT

(1.) This matter has come up before us as per order of reference by a learned single Judge (Thomas, J.)

(2.) This Crl. MC is by the accused in S.T.No.305 of 1993 on the file of the Chief Judicial Magistrate, Thrissur to quash Annexure-D complaint filed by the 2nd respond- ent under S.138 of the Negotiable Instruments Act, 1881 as amended by Act 66 of 1988 (for short 'the Act'). Petitioner alleges that the said complaint does not contain allegation regarding the ingredients constituting the offence punishable under S.138 of the Act. According to the petitioner Annexure-D complaint since does not contain an allegation to the effect that the cheque issued by the petitioner was returned by the bank un-paid as the amount of money standing to the credit of the petitioner is insufficient to honour the cheque, the complaint cannot be entertained and no cognizance-could have been taken on the basis of the said complaint. Petitioner issued a cheque for an amount of Rs.30,750/- in favour of the second respondent; but by. Annexure-A letter petitioner informed the Manager, South Indian Bank Ltd., Eriyad Branch that the payment as per cheque has to be stopped for the reasons stated therein. When the cheque was presented, the same was returned with the endorsement ''Payment stopped". According to the second respondent he issued a notice to the petitioner as required under Cl.(b) of the proviso to S.138 of the Act and since payment was not made in response to the said notice within the time stipulated, Annexure-D complaint was filed.

(3.) According to the 2nd respondent the question as to the insufficiency of fund to the credit of the petitioner for honouring the cheque is a matter for evidence and not a matter for allegation as S.138 of the Act does not insist that such an allegation is necessary.