M. Subramaniam vs P. Rathinakumar

T.S. Arunachalam, J.—Petitioner is the sole accused in S.T.C. No. 1881 of 1991, pending on the file of Judicial Magistrate, Mettupalayam.

He is being prosecuted for having allegedly committed an offence punishable u/s 138 of the Negotiable Instruments Act, on a private complaint

initiated by the respondent.

In this petition preferred u/s 482 of the Code of Criminal Procedure, to call for the records and quash the pending prosecution as not

maintainable and an abuse of process of Court, two grounds were urged by petitioner''s counsel. The first ground was that the allegations in the

complaint are so vague, that cognizance could not have been taken by the trial Magistrate. The second ground was that endorsement by the

Banker ""refer to drawer"" cannot be held to be either due to insufficiency of funds in the accounts to honour the cheque, or because the amount

shown in the cheque exceeded the arrangement and hence it has to be necessarily held that no offence u/s 138 of the Act stood committed.

On both these grounds of challenge, I have heard learned counsel appearing on behalf of the respondent.

After careful consideration, I am unable to agree with either of the contentions. Petitioner''s counsel has not been able to explain as to why he

has condemned the complaint for vagueness. The complaint clearly states that the petitioner had received a sum of Rs. 15,000/- and had issued a

post-dated cheque dated 15-9-1991, in favour of the respondent. The complaint further alleges that this cheque, presented to the Banker, was

returned on 27-6-1991 with an endorsement ""Refer to drawer"". The complaint also states, that the petitioner had purposely omitted to make

arrangements for honouring of the cheque. The complaint narrates about issue of statutory notice and the receipt of the same by the petitioner and

his not having complied with the demand made, which necessarily had led to the preferring of the impugned complaint. All necessary ingredients

are available in the complaint and I am unable to see any vagueness. The first ground shall stand rejected.

On the second ground as well, petitioner cannot succeed. In V. S. Krishnan v. V. S. Narayanan, 1990 Mad LW (Cri) 67, I have observed as

follows :

In banking parlance the reason ''Refer to drawer'' when cheques are returned unpaid is used generally for returning the cheques for want of funds

in the drawer''s account or because of service of garnishee order. This again is a matter of evidence. The bank would be able to justify before the

Court the reasons for which the cheque was returned. If in banking parlance ''refer to drawer'' is used for the purpose aforementioned, the

ingredients of the section would be attracted.

Similar view has been taken by this Court consistently. This ground has to be necessarily negated.

No other ground was urged. This petition, which has no merit, shall stand dismissed.

Petition dismissed.