T.P. Pappachan vs P.O. Joy

Ghettur Sankaran Nair, J.—Invoking the jurisdiction u/s 482 of the Criminal Procedure Code, the petitioner seeks to quash the complaint in C.C. No. 806 of 1990 on the file of the Judicial Magistrate of First Class, Perumbavoor. He relies on a decision of a learned judge of this court in Bhageerathy v. V. Beena [1992] 2 KLT 31 ; [1993] 76 Comp Cas 684 to contend that if there is no averment in the complaint that the cheque was dishonoured because of insufficiency of funds in the account of the drawer, a charge u/s 138 of the Negotiable Instruments Act, 1881, will not lie. He submits further that the allegations will not constitute an offence u/s 138 of the Act. Insufficiency of funds is a matter of evidence. Allegations do not always do service for evidence, and lack of allegations does not always indicate lack of evidence. The entire case of the prosecution need not verbatim enter the complaint, warp and woof.

The decisions of a Division Bench of this court in Thomas Varghese v. P. Jerome [1992] 1 KLT 812 ; [1993] 76 Comp Cas 380 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.