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1993 DIGILAW 17 (MAD)

SOUTHERN WEAVERS (P. ) LTD. v. K. A. THAMGAVEL

1993-01-08

S.M.ALI MOHAMED

body1993
Judgment : S. M. Ali Mohammed, J. ( 1 ) THIS petition has been filed under Section 482 of the Code of Criminal Procedure, to call for the records in S. T. R. No. 1630 of 1992 of judicial Magistrate No. III, Salem and to quash the same. ( 2 ) THE petitioners are the accused Nos. 1 and 2 in S. T. R. No. 1630 of 1992 on the file of the Judicial Magistrate-III, Salem. A complaint was filed by the respondent under Sections 138 and 142 of the Negotiable Instruments Act against the petitioners herein. It is averred in the complaint that the complainant delivered textile goods to the accused for a sum of Rs. 1,10,732. 46 and the accused gave a cheque bearing No. 186645, dated 3. 1. 1991 for Rs. 1,10,732. 46 drawn on Canara Bank, Ammapet branch, in favour of the complainant/respondent. When the complainant presented the cheque for collection through the complainants bank, Tamil Nadu Mercantile Bank, salem, the same was returned as unpaid due to "insufficient Funds" in the account of the accused. The complainant, after giving 15 days notice to the accused preferred a complaint as stated above. The learned Judicial Magistrate has taken cognizance of the complaint and issued process to the accused. ( 3 ) IT is contended by the learned Counsel for the petitioner that once the cheque was returned by the bank for insufficient funds, the offence was committed on that day and the respondent after issue of notice within 15 days from that date ought to have filed a complaint thereafter within 30 days. In the instant case, it is submitted that the cheque was presented for collection on various dates viz. on 3. 1. 1992, 3. 2. 1992, 16. 4. 1992 and 25. 6. 1992. Therefore, it is not in compliance with the provision as contained in Section 142 (b) of the Negotiable Instruments Act, which contemplates a single cause of action. ( 4 ) I am not able to accept the contention of the learned Counsel for the petitioner to the effect that there can be only one cause of action as per Section 142 (b) read with Section 138 (c) of the Act. Janarthanam, J. , in a case reported in Sivasankar v. Santhakumari, 1991 LW (Cri) 481 : [vol. ( 4 ) I am not able to accept the contention of the learned Counsel for the petitioner to the effect that there can be only one cause of action as per Section 142 (b) read with Section 138 (c) of the Act. Janarthanam, J. , in a case reported in Sivasankar v. Santhakumari, 1991 LW (Cri) 481 : [vol. 1 DCTC 100], has rejected similar contentions and has held as follows : "the dismissal of the complaint by the learned Magistrate for the non- initiation of the prosecution on arising of the first cause of action, viz. , the dishonour of the cheque for the first time on 9. 12. 1989, does not at all reflect the true legal position as adumbrated under Sections 138 and 142 of aforesaid Act. What is contemplates in those proceedings is : (i) The cheque has to be presented for encashment within its period of validity. (ii) The cheque has to be dishonoured either because 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 the account by an agreement made with the bank. (iii) A legal notice has to be given by the holder of the cheque to the drawer to comply with demand made in the notice for repayment within 15 days of the date of receipt of the notice. (iv) If compliance is not made, the prosecution has to be launched within one month, after the expiry of 15 days from the date of receipt of notice. There is no specific provision at all that the complaint or the prosecution has to be launched on the dishonour of the cheque on different occasions, of course presented within its period of validity will have to be construed as constituting separate cause of action for the initiation of a prosecution. ( 5 ) THE same view has been reiterated by Pratap Singh, J. , in a case reported in n. W. Ravichandran v. Vellaiyappan, 1992 MLJ (Crl) 618 : [vol. ( 5 ) THE same view has been reiterated by Pratap Singh, J. , in a case reported in n. W. Ravichandran v. Vellaiyappan, 1992 MLJ (Crl) 618 : [vol. 1 DCTC 252]in the said case, the learned Judge has held as follows : "there is no bar for presentation of the cheque at a later point of time also and if it was dishonoured for the reasons stated in Section 138 of the Act and the further requirements are complied with, certainly the offence is made out. The first presentation and dishonour of the same would not stand as a bar of the second presentation and commission of an offence under Section 138, Negotiable Instruments act in respect of the dishonour for a second time" ( 6 ) "similar view has been taken by the Andhra Pradesh High Court in a case reported in M/s. Syed Raswol and Sons and others v. M/s. Aildar and Company and another, 1992 Crl. LJ 4048 : [vol. 1 DCTC 368] In the said case, it has been held as follows : "further, it is contended that even on admitted facts there cannot be a second cause of action relating to the same cheque. The same contention has been considered by a learned single Judge of the Court (Eswara Prasad, J ). In Richard samson Sherrat v. State of A. P. , 1992 (1) An WR 502 : [vol. 1 DCTC 304], by holding that the cheque can be 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. Clause (a) of the proviso to Section 138 does not lay down as to the number of times a cheque can be presented to the bank. When the statute has not laid down any limitation on the number of times that a cheque may be presented within the period of six months or any shorter period, it will not be desirable to read into the said clause and such restriction as to the number of times a cheque may be presented. A Division Bench of the Kerala High Court in kumaresan v. Ameerappa, 1992 (1) Crimes 23 : [vol. A Division Bench of the Kerala High Court in kumaresan v. Ameerappa, 1992 (1) Crimes 23 : [vol. 1 DCTC 161], took a view that the payee cannot have a second cause of action on the same cheque when once he had failed to institute a complaint on the strength of the first cause of action. Another Division Bench of Kerala High Court, referred to above, in mahadevan Sunil Kumar v. Bhadran, 1991 (1) KLJ 335 : [vol. 1 DCTC 127], and held that there can be second cause of action on the same cheque. In mahadevans case, the Division Bench held as follows : "it is clear that cause of action for filing the complaint may arise on several occasions and the payee or holder in due course is entitled to present the cheque at any time within a period of six months from the date on which it was drawn and for filing the complaint he should have served notice of such dishonour to the drawer; the payee or holder in due course can make a second presentation of the cheque and if other conditions are fulfilled, he can launch a complaint on the basis of the second dishonour of the cheque as the cheque would remain valid for a period of six months. " a Division Bench Kerala High Court in Prithviraj v. Mathew Koshy, 1991 (1)KLJ 595 : [vol. 1 DCTC 132], observed thus : "dishonour of cheque by itself does not give rise to a cause of action, because payment can be made on receipt of notice of demand contemplated in Clause (b)of Section 138 and in that event, there is no offence, nor any attempt to commit the offence. Failure to pay the amount within fifteen days of receipt of notice alone is the cause of action and nothing else. " from the scheme of Sections 138 and 142, it is thus seen that a cheque can be 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. " from the scheme of Sections 138 and 142, it is thus seen that a cheque can be 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. So, when a cheque, which has been presented to the bank, is returned, the payee or the holder in due course of the cheque has to give a notice, in writing, to the drawer within fifteen days of the receipt of information from the bank and the drawer of such cheque must make the payment of the amount to the payee or the holder of the cheque within fifteen days of the receipt of the said notice. The person who issued the cheque may approach the payee in whose favour the cheque was issued and convince him that he will pay the amount or he will arrange to see that the amount will be paid and request for postponement of time. The cheque can be presented to the bank within the period of six months from the date on which it is drawn on within the period of its validity, whichever is earlier. During the validity period the cheque can be presented any number of times but the action by filing a complaint under Section 138 read with Section 142 can be taken only once. " ( 7 ) IN view of the above rulings, I am unable to accept the contention of the learned counsel for the petitioner to the effect that there can be only one cause of action as per Section 142 (b) read with Section 138 (c) of the Negotiable Instruments Act. No other point was urged by the learned Counsel before this Court. In view of the above, this petition is dismissed. Petition dismissed.