JUDGMENT
Pratap Singh, J.
1. The accused in C.C. No. 22637 of 1989, on the file of the Chief Metropolitan Magistrate, Egmore, Madras, has filed this petition under section 482 of the Criminal Procedure Code, 1973, to quash all further proceedings in the said C.C. No. 22637 of 1989.
2. The respondent has filed the complaint against the petitioner for the offence under section 138 of the Negotiable Instruments Act, 1881 (which I shall hereafter refer to as “the Act”), on the allegations that the accused sent three cheques dated August 28, 1989, September 15, 1989, and September 30, 1989, for Rs. 50,000, Rs. 25,000 and Rs. 25,000 respectively, in part payment of the loan due by him and requested the complainant to present the cheque for encashment on October 17, 1989, and accordingly, the complainant presented the cheques on October 17, 1989. Three cheques were returned with an endorsement “refer to drawer”. He came to know about the dishonour on November 4, 1989. The complainant sent a registered notice to the accused to pay the amount due under the dishonoured cheques. Notice was served on the accused on November 10, 1989. The lawyer of the accused sent an interim reply that the accused was out of station. Later, he sent a detailed reply. The complainant sent a rejoinder. He had not paid the amount due under the cheque. Hence, the complaint.
3. Mr. M. Karpagavinayagam, learned counsel appearing for the petitioner, submitted that :
(i) the endorsement of return was “refer to drawer” and that the requirement for the offence under section 138 of the Act was that the cheque must have been returned for insufficiency of funds or exceeding the arrangement and that has not been the case here and so offence was not made out.
(ii) November 10, 1989, was the date of receipt of the notice. The court seal found in the complaint was December 27, 1989, and so it was filed beyond time.
4. I have heard Mr. P. Srinivasalu, learned counsel appearing for the respondent, on the above aspects.
5. I shall first consider the first submission that the three cheques were returned with an endorsement “refer to drawer”. In the unreported decision in Criminal Miscellaneous Petition No. 9228 of 1990, similar point was raised before Justice Janarthanam and it was not accepted by the learned judge. The learned judge has laid as follows :
“The third and the last submission, on the face of it, is untenable. The sordid fact is that the cheque, on proper presentation, remained unpaid. By the use of the phraseology by the baker refer to drawer’, the banker euphemistically stated, by way of courtesy to its customers, that his bank account is not credited with money sufficient to honour the cheque or that it expects the amount arranged to be paid from that account by an agreement made to the bank. As such it has to be construed the reason for non-payment had been covered to the drawer of the cheque, in the circumstances, in a most courteous and civilized way, by the use of pleasant phraseology refer to drawer without hurting his feelings.”
6. In that case, the cheque was returned with an endorsement “refer to drawer”. It was contended that the phraseology “refer to drawer” will not at all connote dishonour of the cheque. That submission was not accepted by this court.
7. Jayalakshmi v. Rashida [1991] 2 MWN (Crl.) 202; [1992] 74 Comp Cas 841, 844 this court has laid down as follows :
“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, is an offence committed. In some cases, where the cheque is returned unpaid with the endorsement refer to drawer it has been held by this court that the 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.”
8. In Manohar v. Mahalingam [1992] LW (Crl.) 367, Justice Padmini Jesudurai had laid down as follows :
“The answer refer to drawer often adopted by bankers could mean anything from shortage of time to death or insolvency of the drawer and could also include insufficiency of funds …. It is seen therefore that the nomenclature of the return by itself, would not be decisive of the cause of the return.”
9. So simply because the return was with an endorsement “refer to drawer”, it cannot be concluded that it was not due to insufficiency of funds or exceeding the arrangement made the cheque was dishonoured. It is a matter of evidence, which can be gone into only at the time of trial. In view of the ruling of this court, which I have referred to supra, I am clear that on the ground that the endorsement of the return was ‘refer to drawer’, the proceedings cannot be quashed at the threshold.
10. Mr. Karpagavinayagam would rely upon Union Road Ways (P.) Ltd. v. Shah Ramanlal Ritesh Kumar [1992] (Supp.) MWN (Cr.) 110; [1993] 76 Comp Cas 315, in which the Andhra Pradesh High Court had held that from the endorsement “refer to drawer” in the return, the complainant cannot draw an inference that the cheque was issued without funds and that in such a case offence under section 138 of the Act is not made out. With respect, I am unable to agree with the view expressed in this ruling, in view of the rulings of this High Court, which I have referred to above. For the reasons stated above, I am unable to accept the first submission made by Mr. Karpagavinayagam.
11. Regarding the second submission, learned counsel for the respondent would submit that there is an endorsement of the learned Magistrate for having received the complaint on December 26, 1989, December 24, 1989, and December 25, 1989, were holidays and the complaint was presented immediately after the holidays and the period of 45 days expired on a holiday and on the next working day, the complaint was presented and hence it was not barred by time. Mr. Karpagavinayagam would submit that the court seal was dated December 26, 1989. In view of the above, at this juncture, I cannot hold that the complaint was presented only on December 27, 1989, without any evidence in that regard, which can be gone into only at the time of trial and hence on that ground the entire complaint cannot be quashed at the threshold.
12. In view of the above, Criminal Miscellaneous Petition No. 2939 of 1990 fails and shall stand dismissed.
