RAVI Vs. MOHD ISMAIL

JUDGEMENT

(1.) The accused in C.C.No. 63 of 1990 of the Judicial Magistrate of the First Class, Nedumangad is the petitioner. The case arose on a complaint filed by the first respondent, who alleged that the petitioner borrowed Rs. 50,000/- from him on 22-11-1989 and issued two cheques for Rs.25,000/- each in his favour towards settlement of the liability. They were drawn on the Statue Branch of the State Bank of Travancore, where the petitioner had an account and were dishonoured by the Bank when presented for encashment with the endorsement "refer to drawer". Pursuant to the dishonour he caused a notice to be sent on 29-1-1990, which was returned unserved with the endorsement, "addressee unknown". Allegedly the petitioner committed offence under S.138 of the Negotiable Instruments Act and accordingly Annexure-I complaint was filed under S.142, of the said Act. The Magistrate took cognizance of the complaint and issued summons to the petitioner, who is aggrieved by the proceedings, stating that cognisance ought not to have been taken since the complaint did not disclose any offence. He has sought to quash the complaint and related proceedings in the above case.

(2.) Heard counsel for the petitioner and the first respondent

(3.) In Annexure-I the first respondent has given the relevant details. He has stated that the petitioner owed him Rs.50,000/- which he had borrowed, that two cheques which were given in repayment of the debt were dishonoured with the endorsement "refer to drawer" that thereupon he issued notice intimating the dishonour and demanding payment. It was returned undelivered. Whether there was proper service of notice or not is not now a matter in issue, and, therefore I do not wish to advert to it here. No doubt, in the complaint the first respondent had not specifically alleged that the amount that stood to the credit of the petitioner was insufficient to honour the cheques. It was submitted on his behalf that the words "refer to drawer" in the Bank's memorandum would not be sufficient to attract the offence under S.138 of the Act, in the absence of specific allegations in the complaint that the cheques were dishonoured for one or the other reason mentioned in the section. But then the complaint has to be read along with the sworn statement of the complainant recorded under S.200 of the Code of Criminal Procedure. They should not be read disjunctively since they supplement and complement each other. If therefore the allegations in the complaint and the sworn statement together make out a case for the offence alleged, the Magistrate will be well within his right to take cognisance of the offence and issue process to the accused. This is not to say that matters which are not there in the complaint could be said in the sworn statement, which must, as far as it can go, be in conformity with what has been alleged in the complaint. As held in Ammini Amma v. Sukumaran, 1981 KLT 266 ,-