ANDHRA PRADESH HIGH COURT
THE HON’BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
CRIMINAL PETITION No.3913 OF 2018
ORDER:
The present criminal petition is filed seeking to call for the records pertaining to C.C.No.442 of 2017, on the file of the Special Judicial Magistrate for Prohibition & Excise-cum-Judicial Magistrate of First Class, Guntur and to quash the same.
Brief facts of the case is that:
(a) The petitioner/accused had borrowed a sum of Rs.3,75,000/- from the 2nd respondent herein on 26.11.2016, by way of hand loan, in presence of the mediators and on repeated demands, the petitioner/accused for discharging of the said debit issued a cheque bearing No.777598 dated 28.03.2017, for an amount of Rs3,75,000/-, drawn on Syndicate bank, C-Camp branch, Kurnool and the same was presented by the 2nd respondent herein in his bank and it was returned on 27.06.2017 with an endorsement “contact drawer bank”.
(b) The 2nd respondent informed the same to the petitioner and the petitioner orally represented the 2nd respondent to present the said cheque again for collection and again as per the instructions of the petitioner, the 2nd respondent present the saidcheque and on 05.07.2017, the said cheque was returned with an endorsement “other reason-shifted”.
(c) Therefore, as there is no other go, the 2nd respondent herein constrained to file a private complaint for the offences punishable under Sections 138 and 142 of the Negotiable Instruments Act, 1881 (for short “N.I.Act”), after following the due procedure, as contemplated under the N.I.Act.(d) Now, the said complaint was assailed in the present criminal petition on the ground that the petitioner has lost his five cheques and the same were misused by the 2nd respondent.
3.On entire reading of the reply legal notice issued by the petitioner/accused, it is asserted that the petitioner/accused has addressed a letter dated 02.11.2010 to his banker about the loss of five blank cheque leaves bearing Nos.777596 to 777600. As seen from the reply legal notice, the petitioner/accused has not made any complaint to the police for the loss of cheque leaves.
4.Now, the learned counsel for the petitioner would submit that the cheque was not bounced due to the insufficient funds, it was returned with an endorsement “contact drawer bank” that it would not amount dishonor, therefore, he pleads to quash the proceedings.
5.In Modi Cements Limited v. Kuchil Kumar Nandi1 it has been held that even when a cheque is dishonored by reason of “stop payment” instruction, is an offence under Section 138 N.I.Act would still be made out.
6.In Electronic Trade & Development Technologies Corporation, Ltd., Secundrabad v. Indian Technologists & Engineers (Electronics) (P) Ltd and another2 it would thus be clear that when a cheque is drawn by a person on an account maintained by him with the banker, for payment of any amount of money to another person out of that account, for the discharge of debt in whole or in part or other liability, is returned by the bank with an endorsements like, “refer to contact the drawer bank” “instructions for stoppage of payment” and “stamp exceeds arrangements”, it amounts to dishonor within the meaning of Section 138 of N.I.Act. 7. As per the judgments referred supra it is deducible for whatever reasons a cheque is returned a complaint can be maintained under Section 138 of N.I.Act. In the present case, it is admitted that a letter dated 02.11.2010 was addressed by the petitioner/accused to his banker.
8.In view of the aforesaid decisions, “referring to the bank” also falls under the category of dishonor of cheque, therefore, the contention raised by the petitioner is untenable and is liable to be rejected.
9.Whenever facts are disputed, truth should be allowed to emerge by leading evidence, on this aspect it may be evident to refer the ratio laid in Rajeshbhai Muljibhai Patel and others v. State of Gujarat and another3 whereas, following opinion was rendered by Hon’ble Justice R.Banumathi: when disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 N.I Act, ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C., as held by the Hon’ble Apex Court in Modi Cements referred (1) supra and in Indian Electronics referred (2) supra, when a cheque was returned by the bank with such any endorsement, amounts to dishonor within the meaning to Section 138 of N.I.Act.
10.The case of the 2nd respondent herein is that cheques were issued by the petitioner and the same was presented in the bank and it was returned twice with an endorsement “contact drawer bank” and at the direction given by the petitioner herein, the drawer bank has not released the cheque amounts, therefore, the endorsement “contact the drawer bank” amounts dishonor of cheque.
Accordingly, the Criminal Petition is dismissed
Therefore, this Court is declined to accept the grounds raised by the petitioner as not a valid and legal grounds, to quash the proceedings
