B S HALLAN Vs. SHASI B MENON

JUDGEMENT

(1.) THE accused in C. C. No. 96 of 1993 on the file of the Judicial magistrate, Coonoor, has filed this petition under Section 482 of Criminal Procedure code praying to call for the records in the above case and to quash the same.

(2.) 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 23. 1. 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 represented 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 he had paucity of funds in his account 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 15. 3. 1993 calling upon the accused to pay the amount within fifteen days of the said notice. The accused had received the notice on 19. 3. 1993. But he did not send any reply and he did not make any payment. Hence the complaint.

(3.) MR. V. Nicholas, learned Counsel appearing for the petitioner, would submit that only in 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. Karpaqavinayagam, 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 insufficiency of 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.