IMPORTANT POINT
Complaint u/s. 138 Negotiable Instruments Act cannot be quashed on the ground that there is no averment in it that cheque was dishonoured because of insufficiency of funds as it is a mailer of evidence.

Sankaran Nair, J. - Invoking the jurisdiction under Section 482 of the Code, petitioner seeks to quash the complaint in C.C. 806/90 on the file of the Judicial Magistrate of First Class, Perumbavoor. He relies on a decision of a learned Judge of this Court in Bhageermhy v. Beena1, 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 under section 138 of the Negotiable Instruments Act will not lie. He submits further that the allegations will not constitute an offence under section 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.

2. The decision of a Division Bench of this Court in Thomas Varghese v. Jerome2, 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 under section 482 of the Code of Criminal Procedure in cases under section 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.

Petition dismissed.

1.1992 (2) K.L.T. 31.

2. 1992(1) K.L.T. 812.