R KESAVAN Vs. D PARVATHAM

JUDGEMENT

(1.) THE accused in C. C. No. 50 of 1990 and C. C. No. 51 of 1990 have filed these petitions under section 482, Criminal Procedure Code, 1975, praying to call for the records and to quash the same. THE allegations in the complaint C. C. No. 51 of 1993, are similar to the allegations made in the complaint in C. C. No. 50 of 1990. THE allegations in C. C. No. 50 of 1990 are briefly as follows : THE respondent has filed complaints against the petitioners for offences under sections 138 and 142 of the Negotiable instruments Act, which I shall hereinafter refer to as Act. THE allegations in it are briefly as follows : For payment of the amount due for purchase of maida, the accused issued a cheque for Rs. 7, 300 on September 25, 1984 , to the complainant. THE said complainant presented the cheque for encashment on November 27, 1984. It was returned by the bankers on November 28, 1984 , with the endorsement "refer to drawer". THE complainant contacted the accused several times and, lastly, on January 11, 1990 , and requested payment. At the request of the accused, the cheque was presented once again for collection on January 24, 1990. It was returned with an endorsement "refer to drawer". THE complainant sent a notice dated February 2, 1990 , to the accused. He received it on February 6, 1990. He did not make any payment within 15 days thereof, but sent a reply with false allegations. THE complainant issued a rejoinder on February 25, 1990. Even thereafter the complainant did not pay the amount. Hence, the complaint. Mr. M. Duraisamy, learned counsel appearing for Mr. T. Murugamanickam, would submit (1) the presentation of a cheque for second time and return of the same cannot constitute the offence. (2) THE return of the cheque for the reason "refer to drawer", cannot constitute the offence, and (3) 15 days for making payment shall be completed from the date of receipt of the rejoinder notice, in case any rejoinder was sent by the complainant.

(2.) I have heard Miss Hemamalini, learned counsel for Mr. K. Jeyachandran, learned counsel for the respondent on the above aspects. I have carefully considered the submissions made by the rival counsel. I shall first take up submission No. 1. There is no bar to presentation of a cheque any number of times. For making out an offence, it is not necessary that it should be confined only to the first presentation of the cheque. When the cheque was first presented and dishonoured and when the accused made a request to the complainant to present it again and the cheque was presented for the second time and dishonoured, if the other requirements of the offence are complied with, then certainly offence under section 138 of the negotiable Instruments Act is made out. A plain reading of sections 138 to 142 of the Act does not show that the offence is made out only in respect of the first presentation of the cheque. Hence, I am unable to accept the first submission made by Mr. Duraisamy. It has been held by this court on several occasions that the return of the cheque with the endorsement "refer to drawer" would not entitle the accused to have it quashed at the threshold. In many cases such a return with an endorsement of "refer to drawer" would only amount to saying in a courteous manner the fact that there were no sufficient funds in the account of the drawer of the cheque. So, only during the course of trial, could it be seen whether the cheque was returned for insufficiency of funds or otherwise. The return with the endorsement "refer to drawer" was for ever so many reasons. So only at the time of trial, it could be found whether it was for the reason of insufficiency of funds, in which case the offence is made out. So on the ground that the cheque was returned with the endorsement "refer to drawer", the complaint cannot be quashed at the threshold. As per section 142, no court shall take cognizance of any offence unless such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138. Clause (c) of the proviso to section 138 reads as follows: Provided that nothing contained in this section shall apply unless -- -. . . . (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. "