B S HALLAN Vs. SHASI B MENON

JUDGEMENT

(1.) THE accused in CC. No. 96 of 1993, on the file of the judicial Magistrate, Coonoor, has filed this petition under section 482 of the criminal Procedure Code, 1973, praying to call for the records in the above case and to quash the same. THE respondent has filed the complaint against the petitioner for an offence under section 138 of the Negotiable Instruments Act, 1881, hereinafter referred to as "the Act". THE allegations in the complaint are briefly as follows : For the amount due to the complainant, the accused issued a cheque for Rs. 60, 000 in favour of the complainant on January 23, 1993. When it was presented for encashment it was returned with an endorsement "exceeds arrangement". THE complainant apprised the accused about the dishonour of the cheque and as per the request he re-presented the cheque for encashment. It was returned with an endorsement "payment stopped by the drawer". THE accused had issued a cheque to the complainant with full knowledge that there was paucity of funds in his accounts maintained by him with his bankers. THE intention of the accused is to deceive and defraud the complainant. THE complainant issued lawyer's notice dated March 15, 1993 , calling upon the accused to pay the amount within fifteen days of the said notice. THE accused had received the notice on March 19, 1993. But he did not send any reply and he did not make any payment. Hence, the complaint. Mr. V. Nicholas, learned counsel appearing for the petitioner, would submit that only in a case where the cheque was returned with an endorsement "insufficiency of funds" or "exceeds arrangement" the offence is made out. But in this case the cheque was returned with an endorsement "payment stopped by the drawer" and hence the offence is not made out. Per contra, Mr. Karpagavinayagam, learned counsel for the respondent, would contend that even without the endorsement of "payment stopped by the drawer" still there are allegations to the effect that there are insufficient to funds in the account of the petitioner and hence the cheque was returned. So it cannot be quashed at the threshold and it is a matter to be considered only at the time of trial. I have carefully considered the rival submissions made on either side. To consider the above submissions, the relevant allegations made in the complaint need be extracted. In paragraph 5 of the complaint, it is stated as follows : "the complainant further submits that the accused had issued the aforementioned cheque to the complainant with full knowledge that he had paucity of funds in his accounts maintained by him with his bankers. THE intention of the accused is to deceive and defraud the complainant. "*

(2.) IN Binary Systems P. Ltd. v. Nobel Power P. Ltd. [1992] LW (Crl.) 307, on similar facts, I have held that the complaint cannot be quashed at the threshold. IN the complaint concerning the above case, the facts are that the cheque was returned with an endorsement "stop payment". The allegation in the complaint was that the accused had acted diabolically and that on both the occasions when the cheque reached the accused's bank in bangalore for collection, sufficient funds were not available, resulting in the dishonour of the cheque and it was held by me that in the face of positive allegations in the complaint that only due to the insufficiency of funds the cheque was returned, only during the course of trial it can be found out whether the cheque was returned due to the insufficiency of funds or otherwise and that the complaint cannot be quashed at the threshold. IN Manohar (G.) v. S. Mahalingam [1992] LW (Crl.) 367, Padmini Jesudurai J. has taken a similar view.