VEERARAGHAVAN Vs. LALITH KUMAR

JUDGEMENT

(1.) T. S. Arunachalam, J., while hearing the arguments in this petition under Section 482, Code of Criminal Procedure, to quash the proceedings in C.C. No. 489 of 1992 on the file of the XV Metropolitan Magistrate, George Town, Madras, raising the question as to whether the return by a Banker of a cheque unpaid bearing an endorsement 'account closed', will fall within the scope and ambit of the two contingencies, viz., 'insufficiency of the amount of money standing to the credit of the account of the person', or, it exceeded the amount arranged to be paid from that account of a person by an agreement with that Bank, giving rise to a cause of action for launching a prosecution by preference of a private complaint for an offence under Section 138 of the Negotiable Instruments Act, 1881 (Act 26 of 1881) for short ("the Act"), came to notice divergent views emerging from two learned Judges of this Court, Pratap Singh, J. and Padmini Jesudurai, J.

(2.) (a) In Binary Systems (P) Ltd. v. Nobel Power (P) Ltd., Madras (1992 Mad LW (Crl) 307), Pratap Singh, J. was concerned with a cheque, which was returned with an endorsement 'stop payment'. Though in the head note, it is stated that "'stop payment' will not fall within the Section ..." it is seen that such a categoric finding has not been recorded by learned Judge. It appears from a portion of the order quoted below that learned Judge was of the opinion that the return of the cheque should be possible of being brought under either of the two heads mentioned in Section 138 of the Act. However, in that particular case, learned Judge was not inclined to quash the pending prosecution in exercise of powers under Section 482 of the Code of Criminal Procedure (for short 'the Code'), since the complaint contained allegations that there was insufficiency of funds, though the Bank return was on the ground of payment having been stopped. It will be better to extract the observations of learned Judge :-

(3.) However, Padmini Jesudurai, J. in Manohar v. S. Mahalingam (1992 Mad LW (Crl) 367) was of the opinion that return of a cheque with an endorsement 'stopped payment' was not decisive of the case of return, for, insufficiency of funds was capable of being established by the complainant by summoning Bank records. Learned Judge further stated :