Veeraraghavan vs Lalith Kumar

Janarthanam, J.—T.S. Arunachalam, J., while hearing the arguments in this petition u/s 482, Code of Criminal Procedure, to quash the

proceedings in C.C. No. 489 of 1992 on the file of the XV Metropolitan Magistrate, George Town, Madras, raising the question as to whether

the return by a Banker of a cheque unpaid bearing an endorsement ''account closed'', will fall within the scope and ambit of the two contingencies,

viz., ''insufficiency of the amount of money standing to the credit of the account of the person'', or, it exceeded the amount arranged to be paid

from that account of a person by an agreement with that Bank'', giving rise to a cause of action for launching a prosecution by preference of a

private complaint for an offence u/s 138 of the Negotiable Instruments Act, 1881 (Act 26 of 1881) for short ""the Act""), came to notice divergent

views emerging from two learned Judges of this Court, Pratap Singh, J. and Padmini Jesudurai, J.

(a) In Binary Systems (P) Ltd. v. Noble Power (P) Ltd., Madras 1992 Mad LW (Cri) 307, Pratap Singh, J. was concerned with a cheque,

which was returned with an endorsement ''stop payment''. Though in the head note, it is stated that ''""stop payment"" will not fall within the section

...'' it is seen that such a categoric finding has not been recorded by learned Judge. It appears from a portion of the order quoted below that

learned Judge was of the opinion that the return of the cheque should be possible of being brought under either of the two heads mentioned in

Section 138 of the Act. However, in that particular case, learned Judge was not inclined to quash the pending prosecution in exercise of powers

u/s 482 of the Code of Criminal Procedure (for short ''the Code''), since the complaint contained allegations that there was insufficiency of funds,

though the Bank return was on the ground of payment having been stopped. It will be better to extract the observations of learned Judge :-

(4) The learned counsel further contended that the cheques returned with an endorsement ''stop payment'' and it was not returned due to

insufficiency of funds because it exceeds the amount arranged to be paid and hence offence u/s 138 of the Negotiable Instruments Act was not

committed.

On the latter occasion, the cheque has been returned with the endorsement ''stop payment''. The complainant submit that the accused have acted

diabolically. On both the occasions, when the cheque reached the accused''s bank in Bangalore for collection sufficient funds were not available

resulting in the dishonour of the cheque.

Those are the positive allegations in the complaint to the effect that only due to the insufficiency of funds the cheque was returned, but diabolically

the accused had acted and the cheque was returned with the endorsement ''stop payment''. So it is to be seen only during the course of trial

whether the cheque was returned unpaid due to the insufficiency of funds as alleged in para 4 of the complaint or otherwise and when there are

positive allegations to the effect in the complaint that cheque was returned due to insufficiency of funds, those allegations cannot be ignored and the

complaint quashed at the threshold. For, those allegations are true or not can be tested only during trial. That stage has not yet come.

(b) In R. Jayalakshmi v. Rashida, (1991) Mad LW (Cri) 602, Pratap Singh, J., while considering the argument that only in a case where the

cheque was returned unpaid on the ground of insufficiency of funds or that it exceeded the amount arranged to be paid an offence u/s 138 of the

Act should be held to have been made out and not when the endorsement was ''payment countermanded by the drawer''. The relevant portion of

the observations of learned Judge is as under :

A plain reading of Section 138 of the Act would clearly indicate that only in those two contingencies, viz., when the cheque was returned unpaid

because of insufficiency of funds and/or that it exceeds the amount arranged to be paid, offence is committed. In some cases, where the cheque is

returned unpaid with endorsement ''refer to drawer'', it has been held by this Court that endorsement ''refer to drawer'' is an euphemistic way of

informing the payee that the drawer of the cheque has got no amount to his credit to honour the cheque. Such is not the case here. In all the

complaints, the cheques were returned unpaid with endorsements ''refer to drawer'' and ''payment countermanded by the drawer''. So the reason

of referring to the drawer has been pinpointed in the endorsement itself, viz., that payment was countermanded by the drawer. Such a case would

not come within the ambit and scope of Section 138, Negotiable Instruments Act.

(c) In S. Prasanna Vs. R. Vijayalakshmi, Pratap Singh, J., while deciding if a cheque returned unpaid with an endorsement ''account closed'' would

fall within the scope of Section 138 of the Act, observed as under :

A plain reading of Section 138, Negotiable Instruments Act would show that only if the cheque was returned by the bank unpaid because of the

above two contingencies, offence u/s 138 of the N.I. Act is made out. In the instant case, the cheque was returned unpaid with endorsement

''account closed''. Hence, this case does not fall within the ambit of Section 138 of N.I. Act. In this regard, the learned counsel for the petitioner

relied upon the ruling reported in G.R. Hunasikathimathi v. State of Karnataka 1991 1 Crimes 226. In that case, dishonour of the cheque was on

the ground ''account closed''. The learned Magistrate had dismissed the private complaint filed on such dishonour for offences u/s 138, N.I. Act.

Aggrieved by that order, the complainant took up the matter to the High Court u/s 482, Criminal Procedure Code.

It was held that Section 138 of N.I. Act provides for punishment only in case cheque was returned unpaid due to :

(i) insufficiency of the amount in the account of the drawer of the cheque to honour the cheque;

(ii) the amount covered by the cheque exceeded the arrangement to be paid on the account.

and not on any other ground. I am in respectful agreement with the view of the Karnataka High Court. So, on this ground, the complaint is liable to

be quashed.

However, Padmini Jesudurai, J. in Manohar v. S. Mahalingam 1992 Mad LW (Cri) 367 was of the opinion that return of a cheque with an

endorsement ''stopped payment'' was not decisive of the case of return, for, insufficiency of funds was capable of being established by the

complainant by summoning Bank records. Learned Judge further stated :

When such a cheque is returned unpaid, the Banker returns it with a slip giving the reason for the dishonour. There is no statutory obligation on the

banker to give an answer or an objection memo - as they are commonly called - to the payee indicating the reason for the dishonour of the cheque.

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

could also include insufficiency of funds. It could include serving 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 libellous, the return ''refer to drawer'' is not.

Even though the answer or the objection memo on the unpaid cheque shows a reason other than insufficiency of funds or inadequate arrangement,

it would still be open to the complainant to establish, as a fact that the cheque was really returned unpaid only for want of funds or for inadequate

arrangement. This the complainant could do by summoning the necessary bank records and the bank witnesses. This ingredient has to be

established dehors an answer by the bank to that effect in the returned cheque or even in spite of a different answer given by the bank in the

returned cheque.

Even if the cheque had been returned unpaid with the answer ''stopped payment'', as in this case, it would be open to the complainant to establish

that on the day when the cheque was presented, funds were not available to the drawer''s account or that the overdraft arrangement had been

exceeded ..... The proceedings, therefore, cannot be quashed, even before trial has commenced merely because of the return by the bank

indicating causes other than insufficiency of funds or inadequate arrangement. The nomenclature of the return, by itself is not decisive of the cause

of the return.

After having said so, Padmini Jesudurai, J. was of the opinion that in any event, the complaint must disclose that the petitioner did not have

sufficient funds on the day when the cheque was presented for encashment and that the reason for the cheque being unpaid was really insufficiency

of funds or inadequate arrangement. Unless such an allegation was made in the complaint, the complaint would not disclose an offence u/s 138 of

the Act.

Arunachalam, J. would refer to the aforesaid decisions of Pratap Singh, J. and Padmini Jesudurai, J. and then say :

''..... after careful thought, with due respect, I am unable to agree with the law laid down by Pratap Singh, J. in its entirety and in a part with that

laid down by Padmini Jesudurai, J. Since, in my opinion, a wider and broader construction will have to be given to Section 138, of the Negotiable

Instruments Act, keeping in view the scheme, object and purpose of the Act, it has become necessary that an authoritative pronouncement will

have to be rendered by a Division Bench of this Court.

..... ..... ..... .....

''Though Padmini Jesudurai, J. has accepted the prosecution (in Manohar''s case) (supra) I intended stating that nomenclature of the return of the

cheque by itself would not be decisive, the latter part of the observation made by the learned Judge about the nature of allegations, that must form

part of the complaint, cannot, in my view, represent the correct legal position, for, then the object of the enactment would stand defeated. The

learned Judge, while upholding the causes, has refused to grant relief, which must be logical consequence.

Arunachalam, J. in his quest for solution to such a vexed question, traced the various hues of views emerging from different High Courts and

expressed an opinion that since a wider and broader construction will have to be given to Section 138 of the Act keeping in view the scheme,

object and propose of the Act, it has become necessary that an authoritative pronouncement will have to be rendered by a Division Bench of this

Court for a quick and early decision, on the availability of which, a host of cases can stand disposed of.

(a) The said learned Judge posed the question to be decided in the following manner :

When Section 138 of the Negotiable Instruments Act contemplates deemed commission of an offence under two circumstances, namely,

insufficiency of the amount of money standing to the credit of the account of a person or it exceeded the amount arranged to be paid from that

account by an agreement made with that Bank, will a Magistrate be competent to take cognizance, on a private complaint, when the return by the

Bank, of the cheque, bears an endorsement ''account closed'' or ''payment stopped'' or ''refer to drawer'' ?

(b) The sweep and amplitude of the question so posed had been expanded by observing thus :-

Merely because in the question posed, three further contingencies alone have been referred to, it does not mean, that these are exhaustive, for

similar such contingencies with slight variations may also arise.

(c) What is further observed is reflected thus :-

''While considering this question, it also appears important to decide, if specific averments will have to be made in the complaint either about

insufficiency of funds in the account, or, that it exceeded the arrangement, even while the return of the cheque from the banker indicated the three

other categories mentioned in the question framed or similar such contingencies ?

The net result is, that in pith and substance, the following two questions had been referred for an authoritative pronouncement :

(i) Will a Magistrate be competent to take cognizance of a private complaint when the return by the Bank of the cheque bears an endorsement of

contingencies or eventualities other than the ones mentioned in Section 138 of the Negotiable Instruments Act ?

(ii) Will it permissible to invoke the inherent power u/s 482 of the Code of Criminal Procedure, to put an end to the prosecution, merely because

certain words in the statute had not been reproduced in the complaint notwithstanding the fact that the complaint discloses, taken in its totality, the

ingredients of the offence alleged ?

In order to understand the ramifications of the questions posed in all facts, better it is, we think, to go into the objects and reasons or the re-

introduction of Chapter XVII of the Act, by Section 4 of the Banking Public Financial Institutions and Negotiable Instruments Laws (Amendment)

Act, 1988 (Act 66 of 1988) under a new nomenclature for the Chapter ''Of Penalties in case of dishonour of certain cheques for insufficiency of

funds in the accounts''.

Negotiable instruments were devised by the mercantile community as a safe and very dependable method of discharging pecuniary lilabilities and

as a substitute for cash payment which would always involve an element of ample risk due to either the magnitude of the amount sought to be paid

or the geographical distance between the payer and the payee. Such instruments could also be cleverly and conveniently used by several persons

to discharge their financial liabilities, inter se. However, a smooth working of the system of negotiable instruments primarily depended upon the

honesty and the integrity of the parties thereto. The experience, however, of the mercantile community, particularly in India, has been far from

adorable in recent times. A number of cheques dishonoured on the apparent ground of insufficiency of funds with the Bankers in the accounts of

the drawer, has mounted to such an alarming proportion as to create a justifiable doubt and misgiving about the good faith and bona fide intentions

of the givers, i.e. the drawers of the cheques and other endorsers. A practice, it is said, has already crept into the several metropolitan markets in

India to give cheques merely as a device to stall for the time being, the undesirable contingency of being prevented upon to make the payment on

the spot, thus substantially eroding the credibility of cheques as a trustworthy substitute for cash payment. There was already a big clamour in the

mercantile community about the element of insincerity and light-heartedness, which has crept into the practice of issuing cheques and a fairly

effective, though not highly deleterious remedies had to be provided for to eradicate the evil which had incarcerated the operational anatomy of the

business world. A cheque that is dishonoured may cause incalculable loss, injury or inconvenience to the payee or endorsee thereof in view of the

fact that due to the latter''s unexpected disappointment he has also to lick the dust while meeting his own future commitments to other parsons. It is

true that the Act, prior to the re-introduction of Chapter XVII by Act 66 of 1988, has not failed to provide remedy for the aggrieved party. The

remedy would be merely of a civil nature and the process to seek civil justice is notoriously dilatory. To ensure promptitude in remedy against

defaulters, therefore, was the only way in which the element of credibility and dependability could be re-introduced in the practice of issuing

negotiable instruments in the form of cheques. The best way to do this is to provide a criminal remedy of penalty, which is the just thing that is said

to be done by the amending Act.

Clause XI of the objects and reasons Clause in the Bill, which is relevant for the present purpose, is couched in the following terms :

(xi) to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in case of bouncing of cheques due

to insufficiency of funds in the accounts or for the reason tat it exceeds the arrangements made by the drawer, with adequate safeguards to prevent

harassment of honest drawers.

Chapter XVII has five sections, which are as follows :-

Dishonour of cheque for insufficiency, etc. of funds in the account.

Where any cheque drawn by a person on an amount 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 provisions 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.

Presumption in favour of holder :

In shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the

discharge, in whole or in part, of any debt or other liability.

Defence which may not be allowed in any prosecution u/s 138. It shall not be a defence in a prosecution for an offence u/s 138 that the

drawer had no reason to believe when he issued the cheque that the cheque may be dishonoured on presentment for the reasons stated in that

section.

Offences by Companies :

(1) If the person commiting an offence u/s 138 is a company, every person who, at the time the offence, was committed, was in charge of and was

responsible to, the Company, for the conduct of the business of the Company, as well as the Company, shall be deemed to be guilty of the offence

and shall be liable to be proceeded against and punished accordingly.

Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without

his knowledge, or that he had exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in Sub-section (1) where any offence under this Act has been committed by a company and it is proved

that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager,

secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and

shall be liable to be proceeded against and punished accordingly.

Explanation : For the purposes of this section, -

(a) ''company'' means any body corporate and includes a firm or other association of individuals; and

(b) ''director'' in relation to a firm, means a partner in the firm.

Cognizance of Offences :

Notwithstanding anything contained in the Code of Criminal Procedure, 1973, -

(a) no Court shall take cognizance of any offence punishable u/s 138 except upon a complaint, in writing, made by the payee, or as the case may

be, the holder in due course of the cheque :

(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 :

(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable u/s 138.

An offence contemplated by the provisions of this Chapter, shall be deemed to have taken place, if the following conditions exist :-

(a) A cheque has been drawn by a person on an account maintained by him with a bank for payment of any amount of money to another person

from out of that account.

(b) The cheque must have been issued for the discharge, either in whole or in part, of any debt or other liability though, in the absence of proof to

the contrary, it shall be presumed that it was issued for the same purpose;

(c) The cheque is returned by the bank unpaid;

(i) either because of the amount of the money standing to the credit of that account is insufficient to honour the cheque; or

(ii) because it exceeds the amount arranged to be paid from the account by an agreement made with that bank.

Thus, the dishonour of the cheque by a banker under the above mentioned circumstances shall constitute an offence and the offender is liable to be

punished under S. 138 of the Act with imprisonment which may extend to one year or with fine which may extend to twice the amount of the

cheque or with both.

There are two ways in which the legislature has further helped the cause of the aggrieved party by facilitating the application of Section 138 of

the Act to his case :

(i) u/s 139 a presumption is created whereby it is presumed, unless the contrary is proved, that the holder of the cheque i.e. the aggrieved party

received the cheque for the discharge, in whole or in part, of any debt or liability; and

(ii) u/s 140 of the Act the drawer cannot adopt the mere defence of good faith i.e. the defence that he had no reason to believe, when he issued the

cheque, that the cheque may be dishonoured on presentation for the reasons stated in that section. However, an honest or an innocent drawer is

sought to be adequately protected by this Chapter in the following manner : viz.,

(i) Under clause (a) of the proviso to Section 138 of the Act, the drawer will not be liable unless the cheque is presented for payment within a

period of six months from the date on which it is drawn or within the period of its validity whichever is earlier. This means that the payee or the

holder in due course, who has himself been guilty of what may be legally called ''contributory negligence'' by his own procrastination, would not be

able to reap the benefit of the penal provisions in S. 138 of the Act. This provision also indirectly suggests that the drawer of the cheque is under

an obligation to keep in his account such funds as would meet the demands of the cheque only till the period of its validity or till a period of six

months from the date of its issue, whichever is earlier. If the cheque is presented and dishonoured thereafter, the remedy stated in this section will

not be available to the payee or the holder of the cheque.

(ii) Under clause (b) of the proviso to S. 138, the payee or the holder of the cheque has to make a demand for the payment of the amount under

the cheque by giving in writing a notice to the drawer of the cheque within fifteen days of the receipt of the information by him from the bank

regarding the return of the cheque as unpaid. The statutory requirement of a notice in writing demanding the payment of cheque money indicates

that the penal provisions of this section will not be applicable if notice is not give within the statutory period, or, in the alternative, not given at all.

Of course, violation of clause (b) of the proviso to this section would not cause the payee or the holder in due course of the cheque to forfeit his

other remedies stated in this act. However, this clause (b) of the proviso to the Section along with clause (c) thereof, to be stated below, indicates

that an honest and sincere drawer of a cheque is not expected to be taken unawares and is given ample opportunity of remedying the situation

created by his default before he is exposed to the penal provisions of the section. And the remedy is nothing more than the liability which he had

already undertaken through the modicum of the cheque. Thus if he performs his duty even after the dishonour of the cheque his honour cannot be

put at stake by the penal provisions of the Act. Therefore, the Legislature avowedly wants to treat as not the ''immediate'' but ultimate'' remedy,

knowing fully well that applying criminal remedy in respect of every dishonour of cheque would create an unprecedented pandemonium in the

mercantile circle, thus resulting in ultimately not encouraging the people from making payment through cheque due to even a dismal or slender fear

that it is likely to be dishonoured by even inadvertent calculations of his account by the drawer himself. In a number of situations the drawer of a

cheque may not, either due to lack of appropriate means of communication or because of the apathy of the banker, even be able to know his exact

balance in account at the time of issuing the cheque and must, therefore, be given an opportunity of having a second chance to settle the score

before being dragged in the portals of a Criminal Court.

(iii) According to clause (c) of the proviso to Section 138, the drawer is not liable under this section unless he fails to pay the money as aforesaid

to the payee or the holder in due course within fifteen days of the receipt of such notice. This again indicates that the drawer of a cheque has been

given enough of time margin to so arrange his fiscal resources as to enable him to make the payment of the money under the cheque to the

concerned person, which, by itself would avoid all the undesirable contingency contemplated by the provisions of the section. The section,

therefore, provides ample opportunity to an honest drawer to prove his bona fide intentions through ''conduct'' and saves him from the punishment.

It must be added, however, that even a fraudulent and mala fide drawer may also seek exoneration from criminal liability by making likewise

payment in accordance with clause (c) of the proviso to Section 138 of the Act.

(iv) It may further be noted that under Clause (a) of Section 142 of the Act no Court shall take cognizance of any offence punishable u/s 138

except upon a complaint in writing made by the payee or the holder in due course. Thus a mere dishonour of the cheque of reasons envisaged in

Section 138 does not ipso facto expose the drawer to the penalty stated therein. If the drawer of a cheque claims the trust and the confidence of

the payee, the latter would automatically give the former an opportunity to give another cheque by way of substitute or ask for payment in cash,

instead of filing a criminal complaint. And in the absence of the payee or the holder resorting to the ultimate stage of filing a criminal complaint in

writing, no one else can set the wheels of criminal law in motion against the drawer of the cheque. The Legislature has, therefore, struck a fairly

good balance between drawers, on the one hand, who are recklessly and irresponsibly issuing cheques, regardless of whether or not they would

be dishonoured or even with a sly hope and expectation that they would be dishonoured, and honest drawers, on the other hand, whose cheques

are dishonoured by some miscalculations made in good faith and who are immediately prepared to honour their commitment by making payment of

money.

It is true that cheques are dishonoured by the Banks for various reasons. Some of them are :-

Payee''s endorsement required

(1a) Shareholder''s discharge required in the place provided for.

(1b) Please certify that the amount of cheque is credited to payee''s account only.

(2) Payee''s endorsement irregular. Will pay on Bank''s confirmation.

(3) Payee''s endorsement irregular. Prefix ''For'' or ''For and on behalf of'' of ''Perpro'' required.

(4) Payee''s endorsement Bank''s confirmation.

(4a) Shareholder''s discharge irregular.

(5) Payee''s vernacular endorsement must be attested by a J.P. or a Magistrate under Official Seal.

(6) Translation of vernacular writing require Bank''s Guarantee.

(6a) Guaranteed translation of vernacular writing required.

(6b) Collecting Bank''s confirmation requires clearing bank''s guarantee.

(6c) Collecting Bank''s discharge required in your favour.

(7) Post-dated

(7a) out of date

(7b) Date doubtful

(7c) Date irregularly written

(7d) Date incomplete

(7e) Cheque without date

(7f) Dividend warrant out of date. Please refer the Company.

(7g) Cheque mutilated requires Bank''s guarantee.

(8) Amount in words and figures differs.

(9) ..... requires drawer''s full signature.

(10) Drawer''s signature differs from specimen recorded with us.

(11) Drawer''s vernacular signature must be attested by our Bank officials.

(12) Drawers signature incomplete

(12a) Drawer''s signature required

(12b) Title on the account required

(12c) Cheque irregularly drawn.

(13) Crossed cheque must be presented through a Bank

(13a) This attached cheque will be received by us for collection.

(13b) This attached draft is marked payee''s account only.

(14) Effects not cleared, please present again.

(15) Effect drawn against returned unpaid.

(16) Not provided for

(16a) Not arranged for

(16b) Exceed arrangements.

(17) No advice, present again.

(18) Full cover not received

(18a) Funds expected. Please present again.

(19) Refer to drawer

(19a) Insufficient funds

(19b) Account closed.

(20) Payment stopped by the drawer.

(20a) Cheque number differs.

20b) Cheque crossed to two Banks

(20c) Please present this cheque on the counter for encashment.

(20d) ..... stamp required to be cancelled under authenticated initials.

(21) Today''s Clearing House stamps required.

(21a) Receipt stamp required.

In analysing the reasons, as above, for the return of the cheque unpaid, Arunachalam, J., in the referred order, in para 19 has expressed thus :-

It will be easily possible, to visualise, that except a few of the reasons for return, most of the other reasons can be brought under the two

categories mentioned in Section 138 of the Act, the only need being, that the evidence of the Banker must have to be brought on record, before

the real reason for the return, can safely be concluded. In other words, merely because only two reasons have been mentioned in Section 138 of

the Act, it is not possible to confine prosecutions only to those two reasons, for, obviously many more reasons can also fall under these two heads,

though the nomenclature of the return, may not specifically mention these two contingencies referred to in Section 138 of the Act. To put it

differently, the reason for which, a cheque stands returned, without being honoured, will have to be relegated for consideration during trial,

depending upon the evidence that is sought to be brought on record and most certainly cannot furnish, a ground to erase prosecution, even at the

threshold simply because the nomenclature of return by the Banker, does not show exact words used in Section 138 of the Act.

The observations of Lord Denning, L.J., on the interpretation of statutes, which had been reproduced by the Apex Court in N.K. Jain and

others Vs. C.K. Shah and others, , may in a profitable way be penned down here, to fully understand the implication of Section 138 of the Act, as

interpreted by the superior Courts of jurisdiction, which reads as follows :-

The English language is not an instrument of mathematical precision. Our literature would be much poorer if it were. This is where the draftsmen of

Acts of Parliament have often been unfairly criticised. A Judge, believing himself to be fettered by the supposed rule that he must look to the

language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would

certainly save the Judges trouble if the Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a

defect appears a Judge cannot simply fold his hands and blame the draftsmen. He must set to work on the constructive task of finding the intention

of Parliament, and he must do this not only from the language of the statute but also from a consideration of the social conditions which gave rise to

it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give ''force and life'' to the intention of

Legislature. A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they

would have straightened it out ? He must then do so as they would have done. A Judge must not alter the material of which the Act is woven, but

he can and should iron out the creases.

Justice G. P. Singh on ''Principles of Statutory interpretation'' (Fifth Edition, 1992), has stated at pages 82 and 83, as follows :-

This rule, which is also known as ''purposive construction'' or ''mischief rule'', enables consideration of four matters in construing an Act : (i) what

was the law before the making of the Act, (ii) what was the mischief or defect for which the law did not provide; (iii) what is the remedy that the

Act has provided; and (iv) what is the reason of the remedy. The rule then directs that the Courts must adopt that construction which ''shall

suppress the mischief and advance the remedy''. The rule was explained in The Bengal Immunity Company Limited Vs. The State of Bihar and

Others, by S. R. Das, C.J., as follows :-

It is a sound rule of construction of statute firmly established in England as far back as 1584 when Heydon''s case (1584) 3 CO Rep 7 was

decided that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law)

four things are to be discerned and considered :-

1st - What was the common law before the making of the Act,

2nd - What was the mischief and defect for which the common law did not provide.

3rd - What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth,

4th - The true reason of the remedy.

and then the Office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress

subtle inventions and evasions for continuance of the mischief, a pro privato commodo and to add force and life to the cure and remedy, according

to the true intent of the makers of the Act Pro Bono Publico.

Now, the various hues of views emerging from the different High Courts in the process of interpretation of Section 138 of the Act may fail in

the arena of consideration.

(i)(a) In G. F. Hunasikathimath v. State of Karnataka 1991 1 Crimes 226 : ILR 1990 Kant 3881, the respondent/accused issued a cheque in

favour of the petitioner/complainant, which was dishonoured by the banker with the endorsement ''account closed''. The complainant followed the

procedure laid down in this Chapter and filed a complaint before the Metropolitan Magistrate at Bangalore, who dismissed that complaint on the

ground that dishonour of a cheque on the ground of closure of his account, did not constitute an offence u/s 138 of the Act. The High Court upheld

the dismissal of the complaint and dismissed the revision petition, which was filed by the complainant u/s 482 of the Code.

(b) In interpreting the provisions, K. Ramachandriah, J., heavily relied upon the observations of the Chief Justice of Karnataka High Court in

T.E.C.H. Society Ltd. v. S.C.S.T.M.T. & Backward Classes Improvement Centre ILR 1990 Kant 3320 to the following effect :-

The Court will not extend the law beyond its meaning to take care of a broader legislative purpose. Here ''strict'' means merely that the Court will

refrain from exercising its creative function to apply the rule announced in the statute to situations not covered by it, even though such an extension

would help to advance the manifest ulterior purpose of the statute. Here, strictness relates not to the meaning of the statute but to using the statute

as a basis for judicial law making by analogy with it.

(c) K. Ramachandriah, J., refused to liberally construe the provisions of Section 138 of the Act so as to extend its provisions also to a situation

covering dishonour of cheque on the ground of ''account closed''. To refer to the terse ratio presented cryptically by learned Judge, -

As rightly pointed out by the learned counsel for the accused, Section 138 of the Act provides for punishing the drawer of a cheque which is

dishonoured only under two eventualities. They are (1) insufficiency of the amount in the account of the drawer of the cheque to honour the

cheque; or (2) the amount covered by the cheque exceeding the amount arranged to be paid form the account by an agreement made with the

Bank and not on any other ground although there are several eventualities under which a cheque can be dishonoured and one such eventuality is

the closure of the account of the drawer of the cheque in the particular bank on which he has drawn the cheque subsequent to the issue of the

cheque. It is well settled that penal provisions will have to be construed strictly and not liberally.

(ii) In Abdul Samad v. Satya Naraiyan Mahavar (1990) 2 Bank CLR 416 : (1990) 2 RCR 335 (P&H) , the High Court called upon to decide

whether dishonour of a cheque by a bank on the ground ''payment stopped'' would attract the penal provisions of Section 138 of the Act. While

providing an emphatic negative answer, it was observed :-

''It is well known that a cheque may be returned by the Bank unpaid for various reasons. One of the reasons can be that there is no adequate

amount available in the account on which the cheque is drawn to enable the bank to make the payment. The Parliament in its wisdom has confined

the offence referred to in Section 138 only to bouncing of cheque on the ground of inadequate balance in the account concerned. Where the

cheque is returned unpaid for other ground, the same has not been made an offence.''

(iii) In Om Prakash v. Smt. Swati Girish Bhide, 1993 3 Crimes 306 : 1992 Mah LJ 302 , Dani, J., of the Bombay High Court wholeheartedly

followed the ratio laid down by K. Ramachandriah, J., in Hunasikathimath''s case (supra) and observed :-

''In my view, the said ruling lays down the correct position of law. If any other eventuality than mentioned in S. 138 of the said Act was also to be

considered as one giving rise to a penal action, the wording of S. 138 of the said Act would have been used in that way. The strict construction of

the specific wording of Section 138 of the said Act makes the dishonour of a cheque penal only in two contingencies that is insufficiency of funds

and excess arrangements, and as such in no other case the dishonour of a cheque can be held to be penal under the said section. The maxim

expressum facit cessare tacitum enunciates the principle that the express mention of one thing implies the exclusion of another.''

However, a contrary view has been taken in the following decisions :-

(i) In Rakesh Nemkumar Porwal Vs. Narayan Dhondu Joglekar, , the petitioner/accused had issued thirteen cheques in favour of the

respondent/complainant, who received those cheques back from his banker with an endorsement ''refer to drawer''. Following the procedure laid

down in the Chapter regarding notice of demand, the complainant filed a complaint against the accused before Magistrate, who issued process u/s

138 of the Act and Section 420 of the Indian Penal Code. The accused approached the High Court in revision u/s 482 of the Code and with a

prayer to quash the proceedings on various grounds, one of them being inapplicability of Section 138 of the Act to the facts of the case, since the

cheques were not returned with the endorsement ''insufficiency of funds''. while quashing the proceedings squarely on the ground that the

complainant had filed the complaint before the period of 15 days as stated in S. 138(c) had lapsed, as a result of which, no Court could take

cognizance of the complaint since no offence what ever had occurred on the day on which the complaint was filed, Saldhana, J., however,

proceeded to elaborately consider the circumstances in which Section 138 of the Act would be applicable. The Bench, while leading the broadest

possible applicability to Section 138 of the Act, treating dishonour, by reference to Black''s Law Dictionary, in sum and substance, as a situation

whereby ''payment is refused or cannot be obtained'', proceeded to observe as follows :-

A clear reading of Section 138 leaves no doubt in our mind that the circumstances under which such dihonour take place are required to be totally

ignored. In this case the law only takes note of the fact that the payment has not been forthcoming and it matters little that any of the MANIFOLD

REASONS MAY HAVE CAUSED THAT SITUATION. If, for instance, the closure of an account or the stoppage of payment or any other of

the common place reasons for dishonour were to be justifiable, then, the Legislature would have set these out in the sections, as exceptions not

constituting an offence. No such intention can be read into Section 138 as none exists. The solitary exception made by the Legislature is with

regard to the drawer being offered a final opportunity of paying up the amount within 15 days from the receipt of notice which, in other word,

provides a last opportunity to prove one''s bona fides. It is obvious, that having regard to the wide-spread practice of issuing cheques which are

dishonoured and the many ingenuous methods of avoiding payments that are practised, that the Legislature had opted for a non-nonsense situation.

The possibility has not been overlooked whereby an account may inadvertently be overdrawn or a dishonour may be for technical reasons or

where a genuine mistake has occurred and the grace period provided for by the Legislature after service of notice on the drawer is in order to

afford an opportunity for the drawer to rectify these. Unfortunately, even when the dishonour has taken place due to the dishonesty of the

depositor, the drawer is still given a last chance to act otherwise. Consequently, the reasons for dishonour even if they be very valid as was sought

to be pointed out in this case, should not and cannot be taken into account by a magistrate when such complaint is presented.

(b) The Division Bench, referring to the word ''etc''. appearing in the marginal note to Section 138 of the Act came to the conclusion that ''the

overriding clause in Section 138 revolved around the concept of inability to obtain payment, the manifold situations giving rise to that result being

secondary. The Bench critically commenting the decision of the single Judge to the effect that Section 138 would not be applicable to a situation

wherein a cheque was dishonoured on the ground of ''closure of account'' observed as under :-

This, in our mind, is too narrow a construction of the section and fails to take into account the objects and reasons behind the amendment. The

wording and the endorsement from the Bank or the circumstances under which a cheque is returned are not the guiding criterion but the fact that on

presentation of the cheque, the payment was not made. There could be a host of reasons for this but the bottom line of the situation is that the

payment could not be made by the Banker and the mechanics of the reasons apart, the irresistible conclusion that had the funds been available, the

payment would have been made leads back to the position that dishonour, therefore, implies insufficiency of funds.

(c) Referring to Sections 5 and 6 of the Negotiable Instruments Act for the purposes of stressing that every cheque is bill of exchange and that

every bill of exchange is an ''unconditional order'' to pay the amount stated therein, the Bench observed as follows :-

''Reading these provisions with statement of objects and reasons of the Banking Public Financial Institutions and Negotiable Instruments Law

(Amendment) Act, 1988 (66 of 1988) whereby Chapter 17 comprising of Sections 138 to 142 were inserted with effect from 1-4-1989, there

can be little doubt that section 138 was intended to be a provision to curb instance of dishonour. It will have to be presumed that the multifarious

grounds on which a cheque would be dishonoured are common place and in not having made any exception for such situations the legislative intent

behind Section 138 was that cases of dishonour of a cheque would constitute a criminal offence unless the payment was forthcoming within the

prescribed period. The reference to the term ''insufficiency of funds'' was obviously a qualifying clause which only reiterates the basic principle that

an order to the Bank conveyed through a cheque to make a prescribed payment would only fail in a situation where the Bank could not implement

that direction for want to requisite funds. The circumstances that may contribute to the situation would, therefore, be irrelevant. The presumption in

Section 139 heavily supports this view.

(ii) A Division Bench of the Kerala High Court in Thomas Varghese Vs. P. Jerome, was concerned with an endorsement by the banker that

payment had been stopped by the drawer. The Court observed that the complaint cannot be quashed on the ground that the endorsement was not

to the effect that amount in drawer''s account was insufficient or that it exceeded the amount arranged to be paid from that account by agreement

with the bank, if in fact cheque was returned for insufficiency of amount.

(a) The further observations extracted below are very relevant :-

From the argument advanced by the learned counsel representing the petitioner, it would appear that an offence u/s 138 of the Act should depend

on the endorsement made by the banker while returning the cheque unpaid, i.e., only when the banker makes an endorsement that the amount of

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, can an offence u/s 138 of the Act be made out. According to us, such an approach will

defeat the very purpose of the enactment. The offence under the Section cannot depend on the endorsement made by the banker while returning

the cheque. 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 account of the drawer is insufficient to honour the cheque or that it exceeds the amount arranged

to be paid from that amount by an arrangement made with that bank, the offence will be established. The endorsement made by the banker while

returning the cheque cannot be the decisive factor.

(b) The Bench, while examining the purpose of the enactment, has observed thus :-

In this circumstance, we are not in a position to hold that a complaint u/s 138 of the Act should 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 exceeds the amount arranged to be paid from that account by an agreement made with the bank. If the

circumstances contemplated by Section 138 of the Act are made out, the Court has to examine whether the return of the cheque was on account

of insufficiency of funds belonging to the drawer. This can be done even without reference to the endorsement made by the banker. Endorsements

like ''refer to drawer'', ''account closed'', ''payment has been stopped'' etc., made by the banker at the time of the return of the cheque are having

the effect of proving that the cheque has been bounced. If the bouncing of the cheque was on account of insufficiency of funds belonging to the

drawer, then the drawer will be subjecting himself to proceedings u/s 138 of the Act.

(iii) A single Judge of Rajasthan High Court in M/s. Peary Lal Rajendra Kumar Pvt. Ltd. v. State of Rajasthan 1993 3 Crimes 395 has stated thus

:

It is for the complainant to make out the ingredient of Section 138 of the Act and it is open to him to raise a plea that the real reasons for the

return of unpaid cheque was insufficiency of funds. When in the complaint such a plea has been raised, then at the time of taking cognizance of the

offence, the Magistrate cannot be expected to go into the niceties of case, which would be set up by the accused, without their appearance before

the Court. What is to be seen is whether the allegation made in the complaint prima facie disclose an offence and if so who was the person who

can be said to be liable for the same, when the facts are such in the present case, it cannot but be said that only after evidence of both parties that it

can be determined as to what was real reason for dishonouring of the cheque, this Court cannot quash the proceeding before the Magistrate, as it

is only the availability of all materials on record which would made the Court take decision in the matter.

(a) A single Judge of the Keala High Court in Bhageerathy Vs. V. Beena and Another, has held that the dishonour of a cheque with

endorsement ''payments stopped by the drawer'', will not attract an offence u/s 138 of the Act, more so, when there is no averment in the

complaint that the cheque stood dishonoured for want of adequate funds.

(b) Another learned Judge of the same High Court in S. Ashok and Another Vs. Vasudevan Moosad, took a similar view that when a cheque

stood returned with an endorsement ''stop payment'' without a specific allegation made in the complaint that the cheque got bounced for want of

sufficiency of funds, no offence u/s 138 of the Act was made out and the complaint had to be quashed as not maintainable in exercise of the

powers u/s 482 of the Code.

(c) However, another single Judge of the same High Court has held in Pappachan v. Joy (1993 (2) Crimes 1088) that a complaint u/s 138 of the

Act, cannot be quashed on the ground that there was no averment in it, that the cheques stood dishonoured because of insufficiency of funds, as it

is a matter of evidence. According to learned Judge, the entire case of the prosecution need not verbatim enter the complaint, warp and woof. In

the case of Pappachan (supra), the decision in Bhageerathy (supra) was taken note of. Therein, reference was also made to the Division Bench

decision of the same Court in Thomas Varghese Vs. P. Jerome, . The following observations therein appear to be relevant here :-

The decision of a Division Bench of this Court in Thomas Varghese Vs. P. Jerome, also has to be noticed. It is difficult to say that in all cases

where payment is stopped by the drawer (as in this case), the offence will not arise. In every case of insufficiency of funds, it will be open to the

drawer to stop payment and keep the statute at bay. That is not intended. The matter will have to be examined with reference to the facts of the

case and this the Magistrate will do. The tendency to move this Court u/s 482 of the Code of Criminal Procedure, in cases u/s 138 of the

Negotiable Instruments Act, is so common now. It is also difficult to see why the petitioner waited for two years to approach this Court.

To the rigid and wooden view taken in Hunasikathimath''s case 1991 1 Crimes 226 (supra)) of the Karnataka High Court, implicitly followed

in letter and spirit by the Punjab and Haryana High Court in the case of Abdul Samad (1990) 2 RCR 335 (P&H) and by a learned single Judge of

the Bombay High Court in the case of Om Prakash 1992 3 Crimes 306, there is no other go for us except to agree to disagree with the view

expressed therein, inasmuch as such a view, apart from suffering from a serious infirmity of erroneous interpretation of the relevant provisions of the

Act, is to frustrate the very object and purpose for which the relevant provisions had been introduced by the amending Act. It is to be noted that

this sort of a view is not negligibly supported by the very title of the Chapter, - Of penalties in case of ''dishonour of certain cheques for

insufficiency of funds in the accounts''. Equally important it is to note that the marginal note to Section 138 of the Act states ''dishonour of cheque

for insufficiency etc. of funds in the account''. The addition of the word ''etc''. ''found in the marginal note, cannot be considered to be an accident.

Top of all, such sort of a view, if accepted and followed, the statutory provisions of Chapter 17, introduced by the amending Act, would become a

dead letter and a non-sense situation would be created, in the sense of posing insurmountable obstacle in the free negotiability and acceptability of

the cheques ian the fast moving commercial transactions at regional, national and global level, creating a calamitous situation in the commercial

world. With respect, we agree fully with the view expressed by the Division Bench of the Bombay High Court in the case of Rakesh Nemkumar

Porwal Vs. Narayan Dhondu Joglekar, of the Kerala High Court in the case of Thomas Varghese Vs. P. Jerome, and a single Judge of the

Rajasthan High Court in the case of M/s. Pearay Lal Rajendra Kumar Pvt. Ltd. 1993 3 Crimes 395 (supra), in asmuchas such a view had been

arrived at in interpreting the various expressions and words used in the relevant provisions in a meticulous fashion keeping in view the object and

reasons for which such a provision had been introduced with the avowed purpose of achieving the object for which it was enacted.

Apart from any one of the 21 reasons catalogued above, that is usually given by a bank in the case of return of a cheque unpaid, there may be

myriads of reasons, depending upon the contingency and exigency of the situation. Insufficiency of funds in the accounts may be a situation, which

may be created either innocently or unknowingly by the drawer or may be a product of mischievous gimmicks, like ''closure of account'',

''countermanding the payment'', etc. or even situation wherein the bank dishonours the cheque since it has already instituted a suit against the

drawer to recover the debt against his account. Further insufficiency of funds may be indicated bay various direct and indirect endorsements by the

dishonouring bank, such as ''insufficiency of funds refer to drawer, ''Funds expected - Present again, ''effects not cleared, etc. There may even be a

situation rather created in a mischievous or malicious fashion to see that the cheque issued by the drawer stands returned by the banker unpaid by

subscription of signature in such a way as not to tally with the specimen signature, just to purchase time to meet the demands made knowing fully

well that on the date when the cheque had been drawn, there was insufficiency of funds in his accounts. For the outside world, it may appear that

the reason for the return of the cheque unpaid, was the existence of suspicion as regards the genuineness of the cheque issued by the drawer. But

the real reason is altogether different in such a situation. The drawer in a fraudulent way does the mischief of subscribing his signature totally in a

different fashion to create a doubt as to the genuineness of the cheque so issued by him. He does it with a purpose, which is rather obvious. Such a

trickery device could be adopted to stall the situation of not being in a position to meet the demand, in the sense of not having adequacy of funds in

the account of the drawer, and by adoption of such a device, the payee had really been hoodwinked. Manifold situations may be created by a

fraudulent drawer using all sorts of ingenuity to make it appear that the reason for the return of the cheque unpaid, was neither of the two

contingencies contemplated by Section 138 of the Act, although in real state of affairs, the reason for the return of the cheque unpaid was either of

the two contingencies contemplated therein alone. We are, therefore, of the firm view that the reasons, as given by the bank for the return of the

cheque may not at all reflect the reality of the situation relatable to the sufficiency or otherwise of the funds in the accounts of the drawer or whether

it exceeds the amount arranged to be paid by the drawer by agreement with the bank.

Once a cheque is dishonoured, whatever be the reason therefor, it behoves upon the payee or the holder in due course to issue a notice in

writing to the drawer of the cheque within 15 days from the date of such return, intimating as has been provided under the sanguine provisions

adumbrated under Clauses (b) and (c) to the proviso to Section 138 of the Act, intimating the factum of such return and requiring him to comply

with the demand within 15 days from the date of receipt of the said notice and the demand so made, if not complied with, gives rise to a cause of

action for launching of prosecution against such drawer and the cause of action so enured, lasts for a period of one month, enabling the aggrieved

payee or holder in due course to file a complaint before the Competent Criminal Court. The existence of such factors thus prima facie constitute an

offence u/s 138 of the Act, requiring the case to be taken cognizance of by the competent Court, before which the complaint had been filed.

Cognizance of a complaint is capable of being taken by a competent Court, provided the necessary and requisite averments constituting the

offence complained of are made available in the complaint and nothing further, excepting the taking of a sworn statement from the complainant.

In the case of a prosecution for an offence u/s 138 of the Act, moot a question very often raised before Courts, it is, as to whether averments

regarding sufficiency or otherwise of funds in the account of the drawer, were to be made in the complaint. Divergent views emerge on such a

question from various High Courts, to which we have already adverted to. The rationale or reasoning for the view that there should be specific

averment in the complaint as to the insufficiency of funds before ever the case is taken cognizance of, we rather feel, is not reflecting the real

import, purport or the intentment of Section 138 of the Act. We have already adverted to as to what is necessary and requisite for a complaint to

be taken cognizance of, in respect of an alleged offences u/s 138 of the Act, i.e., the factum of dishonour of the cheque, whatever be the reason,

which was issued in discharge of a debt or other liability in whole or in part, aftr its presentation within its period of validity or six months from the

date of issue, whichever is earlier, coupled with the non-compliance by the drawer of the demand made upon him and the institution of prosecution

within one month from such non-compliance. Such being the case, the non-mentioning in the complaint by way of a specific averment made therein

as to the insufficiency of funds in the account of the drawer, is of no consequence and the question whether there was sufficiency of funds or not in

the account of the drawer on the date when the cheque had been drawn, will be relevant only during the stage of trial and such a question is

capable of being decided, with ease and grace, by the Court on the adduction of evidence by utilising the salient provisions adumbrated under the

provisions of Bankers Book Evidence Act, 1891. Once it is proved in the trial that bouncing of a cheque was due to lack of balance in the account

of the drawer on the date when the cheque was drawn, then it goes without saying that the act of giving cheque resulting in the bouncing of the

cheque due to lack of balance in the account was an ''absolute offence'' even if it was done without any ''criminal intent'', inasmuch as no mens rea

has been prescribed for the commission of such an offence. The non-prescription of any mens rea therein is rather obvious. The monetary blood

flow in the arteries of trade and business heart cannot be permitted to be calcified by dishonouring of the cheque by debtors. In this view of the

matter, we are of the view that there is no necessity at all to make any specific averment in the complaint as to the insuffiency of funds in the

account of the drawer on the date when the cheque was drawn, before ever such a complaint is taken cognizance of by a competent Court.

In view of what has been stated above, we answer the two questions posed, as below :-

(i) It shall be competent for a Magistrate to take cognizance of a private complaint, when the return by the bank of the cheque bears an

endorsement of any of the contingencies or eventualities other than the one mentioned in Section 138 of the Negotiable Instruments Act.

(ii) Invoking the inherent power u/s 482, Code of Criminal Procedure is not permissible to put an end to the prosecution, merely because the

averments in the complaint as relatable to insufficiency of funds, not being specifically mentioned, especially when the details as to the factum of

dishonour of a cheque, whatever be its reason, issued in discharge of a debt or other liability, in whole or in part, after its presentation within its

period of validity or six months from the date of such issue, whichever is earlier, coupled with the non-compliance by the drawer of the demand

made on him and the institution of the prosecution within one month from such non-compliance, are all specifically mentioned in the complaint, as

that alone will constitute factors making our a prima facie case for an alleged offence u/s 138 of the Act to be taken cognizance of by the

competent Court.

We are told at the Bar that countless number of petitions had been filed u/s 482, of the Code to forestall the prosecution launched u/s 138 of

the Act, and in all those cases, interim orders of stay have been obtained preventing the trial in such prosecutions, causing untold misery and

agonising situation to the litigant public anxiously awaiting the verdict of the Court in the cases filed by them. If the instant petition u/s 482 of the

Code is remitted back to learned single Judge for disposal according to law in the light of the answers given by us, there is every likelihood of

further delay being caused in the disposal of such petition, resulting in concomitant delay to be caused in the disposal of countless number of such

petitions already pending before this Court. If this petition is disposed of, by rendering a verdict in the light of the answers we have rendered

above, there will be no handicap for the Registry to collect all those pending petitions and place them before Court for disposal. Only in that view

of the matter, we are desirous of disposing of the instant petition without sending it back to learned single Judge for disposal.

The relevant facts necessary for the disposal of this petition may now be stated. The petitioner borrowed a sum of Rs. 10,000/- on 18-4-1991

from the respondent under a promissory note. In repayment of the said amount, he issued a cheque dated 17-12-1991 for Rs. 10,000/- in favour

of the respondent. When the cheque was presented for payment on 18-12-1991, it was returned by the Bank with the endorsement ''account

closed''. After receipt of the information from the Bank, statutory notice was issued offering 15 days'' time to the petitioner to pay off the amount

and that not having been done, within the period of limitation contemplated under the Act, the impugned prosecution had been launched. The

reason for the dishonour in the instant case ''account closed'' can by no stretch of imagination be stated as serving as a ground for quashing the

prosecution in the Court below in the light of the answers we have given to the questions referred to us for decision, especially when there are

factual foundations in the form of averments in the complaint constituting the necessary ingredients making out a prima facie case, impelling the

Magistrate to take cognizance of the complaint.

For the said reason, this petition deserves to be dismissed and the same is accordingly dismissed.

Before parting with the case, we want to place on record our deep sense of gratitude for the very valuable help and assistance rendered by

learned counsel M/s. A. Packiaraj, M. Karpagavinayagam, K. V. Sridharan, V. Gopinath and V. Padmanabhan, and without their help and

assistance, it could not have been possible for us to decide the questions posed before us, with ease and grace, and without any difficulty

whatever.

Petition dismissed.