Neyyattinkara Ravi vs N. Muhammed Ismail and Another

B.M. Thulasidas, J.—The accused in C. C. No. 63 of 1990 of the Judicial Magistrate of the First Class, Nedumangad, is the petitioner. The case arose on a complaint filed by the first respondent, who alleged that the petitioner borrowed Rs. 50,000 from him on November 22, 1989, and issued two cheques for Rs. 25,000 each in his favour towards settlement of the liability. They were drawn on the Statue Branch of the State Bank of Travancore, where the petitioner had an account and were dishonoured by the bank when presented for encashment with the endorsement "refer to drawer". Pursuant to the dishonour he caused a notice to be sent on January 29, 1990, which was returned unserved with the endorsement, "addressee unknown". Allegedly the petitioner committed an offence u/s 138 of the Negotiable Instruments Act and, accordingly, annexure I complaint, was filed u/s 142 of the said Act. The Magistrate took cognisance of the complaint and issued summons to the petitioner, who is aggrieved by the proceedings, stating that cognisance ought not to have been taken since the complaint did not disclose any offence. He has sought to quash the complaint and related proceedings in the above case.

Heard counsel for the petitioner and the first respondent.

In annexure I the first respondent has given the relevant details. He has stated that the petitioner owed him Rs. 50,000 which he had borrowed, that two cheques which were given in repayment of the debt were dishonoured with the endorsement "refer to drawer", that thereupon he issued notice intimating the dishonour and demanding payment. It was returned undelivered Whether there was proper service of notice or not is not now a matter in issue, and, therefore, I do not wish to advert to it here. No doubt, in the complaint the first respondent had not specifically alleged that the amount that stood to the credit of the petitioner was insufficient to honour the cheques. It was submitted on his behalf that the words "refer to drawer" in the bank''s memorandum would not be sufficient to attract the offence u/s 138 of the Act, in the absence of specific allegations in the complaint that the cheques were dishonoured for one or the other reason mentioned in the section. But then the complaint has to be read along with the sworn statement of the complainant recorded u/s 200 of the Code of Criminal Procedure. They should not be read disjunctively since they supplement and complement each other. If, therefore, the allegations in the complaint and the sworn statement together make out a case for the offence alleged, the Magistrate will be well within his right to take cognisance of the offence and issue process to the accused. This is not to say that matters which are not there in the complaint could be said in the sworn statement, which must, as far as it can go, be in conformity with what has been alleged in the complaint. As held in Ammini Amma v. Sukumaran [1981] KLT 266 (headnote) :

"The scheme and purport of Sections 200, 203 and 204 of the Code are not sufficient to show that the averments in the complaint are not to be looked into for the purpose of taking a decision either to dismiss a complaint u/s 203 or to issue process u/s 204 of the Code. This is made clear by the reference in Section 203 to the words ''if any'' occurring after the words ''statement on oath of the complainant''. This makes it clear that the complaint is also, at any rate, one of the records to be looked into for the purpose of taking a decision under Sections 203 and 204 of the Code. It cannot be said that the court can look into the sworn statement only and not the complaint itself,"

The words "refer to drawer" are susceptible to more explanations than one. To say that 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 would in my view be unjustified. If in the sworn statement the complainant had stated that the cheque was dishonoured for want of sufficient amount, to the credit of the drawer or that it exceeded the amount that the bank had agreed to arrange, the court should take that into account. The complainant had stated so in the sworn statement and in the complaint he had also averred that the petitioner committed an offence punishable u/s 138 of the Act. In view of these, it can be said that prima facie the offence as alleged has been made out and cognisance was rightly taken. The petitioner is, therefore, not entitled to get the complaint and the proceedings in the above case quashed.

The criminal miscellaneous case fails and is dismissed.