Jayaraman vs P.A.C. Pattabiraman

Pratap Singh, J.—The accused in C.C. No. 3593/90 on the file of X Metropolitan Magistrate, Egmore, Madras, has filed this petition under

S. 482 Cr.P.C. to quash the proceedings in C.C. No. 3593/90.

The respondent has filed the complaint under S. 138 , Negotiable Instruments Act, against the petitioner on the following grounds:-

The petitioner/accused purchased chemical goods for Rs. 20,875-60 on 16.12.1989 and issued a cheque, bearing No. 913351 dated 31.1.1990

for the said sum, drawn on Punjab National Bank. The complainant presented the cheque in Indian Overseas Bank, Madras. The same was

dishonoured and returned to the complainant with endorsement ""refer to drawer"" on 6.2.1990. After issuing the notice, which the accused had

received and after waiting for 15 days, since the accused did not pay the amount, has come forward with this petition.

Mr. S. Sethuramakrishnan, the learned counsel for Mr. V. Krishnamoorthy, the learned counsel appearing for the petitioner, would submit that

according to the complaint, the cheque was returned with an endorsement ""refer to drawer"" and that it would not satisfy the requirements of S. 138

of the Negotiable Instruments Act (which I shall hereafter refer to as ''the Act''). The learned counsel would submit that according to S. 138 of the

Act, only in a case where the cheque was returned for insufficiency of funds or exceeding the arrangement, the offence is made out and not

otherwise. He relied upon Manohar v. Mahalingam (1992 LW Cri 367). In para 10 of the judgment, Justice Padmini Jesudurai has laid as

follows:-

The answer ''refer to drawer'' often adopted by banker, could mean anything from shortage of time, to death or insolvency of the drawer and could

also include insufficiency of funds. It could include serving of a garnishee order and could be a milder form of refusal than no funds or no

arrangement''. At times, it may not really reflect the financial position of the drawer and could only mean, ''we are not paying, just ask the drawer

why''. Unlike most other answers, which if proved to be untrue, would be libelous the return'' refer to drawer'' is not. It is seen therefore, that the

nomenclature of the return by itself, would not be decisive of the cause of the return.

In the unreported decision in Crl.M.P. 9228/90, similar point was raised before Justice Janarthanam and it was not accepted by the learned

Judge. The learned Judge has laid as follows:-

The third and the last submission, on the fact of it, is untenable. The sordid fact is that the cheque, when on proper presentation, remained unpaid.

By the use of the phraseology by the banker ""refer to drawer'', the banker euphemistically stated, by way of courtesy to its customers, that his

bank account is not credited with money sufficient to honour the cheque or that it expects the amount arranged to be paid from that account by an

agreement made to the bank. As such, it has to be construed, the reason for non-payment had been conveyed to the drawer of the cheque, in the

circumstances, in a most courteous and civilised way, by the use of pleasant phraseology ""refer to drawer'' without hurting his feelings.

So, simply because the return was with an endorsement ''refer to drawer'', it cannot be concluded that it was not due to insufficiency of funds or

exceeding the arrangement made, the cheque was dishonoured. It is a matter of evidence, which can be gone into only at the time of trial. In view

of the rulings of this court, which I have referred to supra, I am clear that on the ground that the endorsement of the return was ""refer to drawer"",

the proceeding cannot be quashed at the threshold. Hence this petition shall stand dismissed.