V PUNITHAVATHI Vs. S CHANDRASEKARAN

JUDGEMENT

(1.) THE accused in C. C. No. 197 of 1993, on the file of the judicial Magistrate, No. 1, Tiruppur, has filed this petition under section 482 of the Criminal Procedure Code, 1973, praying to call for the records in the above case and quash the same. THE short facts are : THE respondent has filed the private complaint against the petitioner for an offence under section 138 of the Negotiable Instruments Act, 1881 (which I shall hereafter refer to as "the Act" ). THE allegations in it are briefly as follows : THE accused had placed certain orders for supply of cloth for her business. THE complainant supplied clothes to the value of Rs. 2, 92, 891. THE accused had paid Rs. 1, 28, 000. For the balance, she issued two cheques dated May 15, 1993, and May 30, 1993, for Rs. 1 lakh and Rs. 64, 981. 25, respectively. When the complainant presented the first cheque for encashment on May 25, 1993, it was returned with a memorandum containing an endorsement "payment stopped by the drawer". THE complainant sent a registered notice within 15 days from the receipt of information from the bank, through his lawyer to the accused, calling upon her to make the payment of Rs. 1 lakh within 15 days of the receipt of notice. THE accused had received the notice on June 17, 1993, but had not made the payment within 15 days thereof. THE accused had issued the cheque without sufficient funds in her bank account, as a result of which, she has stopped payment of the above cheque amount to the complainant, knowing fully well the consequence thereof. Hence, the complaint. Mr. A. R. Nagarajan, learned counsel appearing for the petitioner, would submit that in this case the cheque was returned with a memorandum containing an endorsement that payment was stopped by the drawer and that only in a case where the cheque was returned for the reason of insufficiency of funds or exceeding arrangement, the offence is made out and not in this case. He would further submit that in para 3 of the complaint, it is stated that the cheque was forwarded to the State Bank of India through the central Bank of India on May 25, 1993, and in para 4 of the complaint, it is stated that within 15 days of the receipt of the information from the bank on May 25, 1993, regarding the return of the cheque, the complainant sent a registered notice dated June 16, 1993, and that if the cheque was presented on May 25, 1993, it will not be returned on May 25, 1993, itself and there is some confusion in this regard. He would further submit that if the cheque was returned on May 25, 1993, the notice sent on June 15, 1993, cannot be within 15 days thereof and in this regard also there is apparently some wrong statement and on this score, the complaint is liable to be quashed. I have carefully considered the submissions made by learned counsel. To consider the first submission, relevant allegations in the complaint need be stated. In para 3 of the complaint, it is stated that the cheque was returned with a memorandum with an endorsement that payment was stopped by the drawer. In para 5 of the complaint, it is alleged that the complainant had issued the cheque without sufficient funds in her bank account as a result of which, she has stopped the payment of the above cheque amount to the complainant, knowing fully well, the consequence thereof. It is further alleged that the accused intentionally, deliberately and with mala fides issued the cheque knowing fully well that on presentation, the cheque would not be honoured. THEse allegations in para 5 of the complaint cannot be ignored. THE primary portion of section 138 of the Act reads as follows : "138. Dishonour of cheque for insufficiency, etc. , of funds in the account.---Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque or with both. . . " (emphasis supplied) In this case, the allegation is that the cheque was returned by the bank unpaid. So the first clause is satisfied. Regarding the second clause, according to the complaint, because the accused had no sufficient funds in her bank account, she has stopped payment and she knew fully well that the cheque would never be honoured. It is stated that only because of that she had stopped payment. So the question whether it was returned unpaid for the reason that there were no sufficient funds in her account, as alleged in the complaint or because of the reason she stopped payment due to some other reasons, can be brought forth only during trial, while evidence can be let in in this regard. On the face of the allegations made in para 5 of the complaint, which I have referred to supra, I am unable to accept the first submission made by learned counsel. I am clear that it is not the endorsement made in the return by the bank that would decide the matter. THE real state of affairs as to whether the cheque was returned unpaid for the reason that there were no sufficient funds in the account of the drawer of the cheque is a matter to be considered, when such positive allegations are made. Learned counsel would rely upon my ruling in S. Prasanna v. R. Vijayalakshmi. That was a case where the cheque was returned unpaid with endorsement "account closed". No further allegations as in this case appear to have been made in that case. Learned counsel further relied upon the ruling in Abdul Samad v. Satya Narayan Mahawar. In it, it was held that offence referred to in section 138 is only confined to bouncing of cheque on the ground of inadequate balance in the account and no offence is committed if cheque is returned unpaid for other grounds. For the reasons stated above, I am unable to accept the first submission. Regarding the second submission, the inconsistency in the complaint can be resolved only when evidence is taken. That will come only at the stage of trial. So on that ground, it cannot be quashed at the threshold. Since none of the submissions made by Mr. A. R. Nagarajan finds acceptance with me, the inevitable result is that the petition does not deserve admission and shall stand dismissed. .