A.R. Kumbhat vs M/s. Peejay Rubber Industries Ltd.

N. Dhinakar, J.—As the parties and the issue involved are one and the same in both the petitions the following common order is being passed. Whether return of a cheque with an endorsement "refer to drawer" will attract the penal provisions as contained in section 138 of the Negotiable Instruments Act.

Before deciding the above point the facts in both the cases may be mentioned. In Crl. M.C. 1270 of 1993 the petitioner issued a cheque for a sum of Rs. 38,200/- dated 6-9-1990 towards the purchase of tubes and it was returned with the endorsement ''refer to drawer''. On 26-11-1990 the statutory notice was sent, but the petitioner did not pay the amount and hence a complaint came to be laid against the petitioner for offence u/s 138 of the Negotiable Instruments Act. In Crl. M.C. No. 1273 of 1993 the petitioner issued a cheque for a sum of Rs. 34,500/- dated 31-10-1990 towards the purchase of tubes and it was returned with an endorsement ''refer to drawer''. A statutory notice, dated 8-12-1990 contemplated under the Act was issued to the petitioner, but the petitioner did not pay the amount and hence a complaint came to be laid against the petitioner for offence u/s 138 of file Negotiable Instruments Act.

The counsel for the petitioner submits that the ingredients of the offence as contained in Section 138 of the Act were not made out on the complaint. He would further submit that even in his sworn statement the respondent did not make any allegations which attract the penal provisions of the said section. In support of his contention the learned counsel relied upon three decisions of this Court one by a learned Single Judge and the other two rendered by different Division Benches.

I have heard the counsel for the petitioner and the respondent. I am not able to agree with the said contention of the petitioner in that the complaints filed in the above cases do not attract the penal provisions contained in Section 138 of the Act. Identical complaints were laid both in Crl. M.C, Nos. 1270 and 1273 of 1993 and in my view it is enough if I extract a paragraph from one of the complaints as similar averments are made in the other complaint also though only the dates differ: The cheque when presented through the State Bank of Travancore was returned with the endorsement ''Refer to drawer'' dated 15-10-1990 by Allahabad Bank which was communicated on 14-11-1990. There upon a Registered demand notice was sent by the Complainant on 26-11-1990 which was acknowledged by the accused on 30-11-1990. Inspite of the same the cheque amount remains unpaid till date.

The paragraph extracted above shows that the cheque issued by the petitioner when presented to his bankers by the respondent was returned with an endorsement ''refer to drawer'' and a registered notice was also sent to the petitioner demanding payment and when the petitioner failed to pay the said amount the complaint came to be filed. Section 138 of the Negotiable Instruments Act reads as follows:

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.

Provided that nothing contained in this section shall apply unless-

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(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.

Explanation.-For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.

According to the petitioner, to attract the penal provisions of Section 138 the cheque must be returned only for insufficiency of funds and the endorsement ''refer to drawer'' will not mean that there were no sufficient funds in the bank. I am not able to agree with the said contention of the petitioner. The decisions relied upon by the learned counsel, in my view will not help the cause of the petitioner and on the contrary the decisions show otherwise. In Thomas Varghese v. Jerome (1992(1) KLT 812) the Division Bench repelled the contention of the petitioner in the said case that if the cheque happened to be returned by the bank either because of the amount of the money standing to the credit of the account of the drawer 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, an offence is made out. The Division Bench took the view that the approach for an offence u/s 138 should not depend on the endorsement made by the banker while returning the cheque unpaid i.e. when the bank makes an endorsement that the amount of the money standing to the credit of the drawer 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 can be an offence u/s 138 of the Act, and came to the conclusion that the offence u/s 138 cannot depend on the endorsement of the banker while returning the cheque. The Division Bench held:

Irrespective of the endorsement made by the banker, if it is established that in fact the cheque was returned unpaid either because the amount of the money standing to the credit of the amount of the drawer 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, the offence will be established. The endorsement made by the banker while returning the cheque cannot be the decisive factor.

The Division Bench took the view that while considering the scheme and object of the Act courts must always endeavour to resort to that interpretation which furthers the object of the legislation. The Division Bench ultimately came to the conclusion that a complaint u/s 138 of the Act shall not be thrown out at the threshold if the banker''s endorsement while returning the cheque is anything other than that the amount of money standing to the credit of the account of the drawer is insufficient to honour the cheque or that it exceed the amount arranged to be paid from that account by an agreement made with the bank. In my view this judgment is in no way helpful to the contention raised by the petitioner and on the contrary it only held that the complaint cannot be thrown out at the threshould even if the endorsement was something other than what is contained in Section 138 of the Act. If the circumstances contemplated by Section 138 are made out then the court has to examine whether the return of the cheque was on account of insufficiency of funds belonging to the drawer. This examination, whether there were insufficiency of funds or not is of course can be done only after the consideration of the materials placed before it. I have already extracted the paragraph from one of the complaints. The above extracted paragraph will go to show that the petitioner gave a cheque which when presented to the bankers was returned with an endorsement ''refer to drawer'' and the notice contemplated u/s 138 of the Act was also issued. In spite of such a statutory notice the petitioner failed to pay the amount. The ingredients of the offence, in my view, under the above circumstances are clearly made out. The words ''refer to drawer'' in my view is only an euphemism for the banker to say that there were no sufficiency of funds in the account. The other judgment relied upon by the learned counsel in Mohammed Rasheed vs. State of Kerala (1993(2) KLT 1027) is also of no help to his contention. The above Division Bench took the view that, on the facts of the case, the allegations in the complaint concerning that case did not make out an offence punishable, u/s 138 of the Act. In fact the said Division Bench approved the principles laid down in Thomas Varghese v. Jerome (1992(1) KLT 812). It is seen from the Judgment in Mohammed Rasheed vs. State of Kerala (1993 (2) KLT 1027) that the complaint did not contain any allegation regarding the ingredients of the, offence u/s 138 of the Act. In view of this, I am of the/view that the later Division Bench has not laid down any proposition of law holding that whenever a cheque is returned with an endorsement ''refer to drawer'' it must mean that it was returned not for insufficiency of funds but for some other reason. A learned single Judge of this Court in Ravi v. Mohammed Ismail (1994 (1) KLT 930) took the view that the words refer to drawer are susceptible to more explanations than one. The Learned Judge further held that to say they do not mean or are not meant to convey one or the other basic ingredients of the offence u/s 138 of the Act will be unjustified. I am in respectful agreement with the learned single Judge. In Balakrishna Pillai v. Abdullakutty (1994(1) KLT 411) a Single Judge of this Court quoted with approval the view of the Division Bench in Mohammed Rasheed vs. State of Kerala (1993 (2) KLT 1027) and held that even if there is no express or explicit averment in the complaint court would be justified in taking congnizance of the offence if the ingredients can be deducted or discerned from the implications or inferences from the complaint. I hage perused the complaints in both the cases. From the averments made in the complaints the ingredients of the offence u/s 138 can be clearly deducted.

The counsel for the respondents relied upon a judgment of the Division Bench of the Andhra Pradesh High Court in M/s. Syed Razool and Sons and others Vs. M/s. Aildas and Co. and others and submitted that the petitioner was in fact given an opportunity to pay the amount as a notice was issued to him as contemplated under the Act and the petitioner had the opportunity to know in advance the reason as to why the cheque was returned by the hankers. He submitted that he having issued the cheque ought to have paid the amount at least after the notice was issued. The failure on the part of the petitioner, according to the respondents, will definitely attract the penal provisions in Section 138 of the Act. The respondents submitted that the phrase used by the bankers in dishonouring the cheque has also to be taken into consideration. In any view the matter should go back to the trial court where the petitioner will have an opportunity to show that there were sufficient funds in his account on that date when the cheque was issued and the endorsement ''refer to drawer'' was not on account of insufficiency of funds but for some other reason. Whether there were sufficient funds in the bank or not being a question of fact this court exercising jurisdiction u/s 482 Crl. P.C. will not go into such questions of fact and give a finding thereon. Under these circumstances these petitions are liable to be dismissed and they are dismissed.