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1996 DIGILAW 139 (KER)

Swarnalatha v. Chandramohan

1996-03-14

K.G.BALAKRISHNAN, S.KRISHNAN UNNI

body1996
Judgment :- This is an appeal filed by the complainant in C.C. No. 698/91 on the file of J.F.C.M.1, Kannur against the acquittal of the respondent. The complaint was filed under Sec. 138 of the Negotiable Instruments Act and it was alleged that the respondent had drawn three cheques in favour of the complainant and when they were presented for payment, they were dishonoured and thus the respondent committed the offence under the Act. When this appeal came up for hearing before the learned Single Judge, question arose as to whether a single complaint could he filed in respect of three cheques. The learned Single Judge disagreed with We view expressed in Crl. R.P. No. 734/94 and was pleased to refer the matter to a Division Bench. 2. We heard the Appellant's counsel and also the counsel for the respondent. The respondent herein was acquitted on the ground that complaint was barred by time. The Magistrate held that as per Section 138(c), the complaint should have been filed within 15 days of the receipt of the notice by the accused. 3. At the outset we may state that, view taken by the Magistrate is incorrect and contrary to the provisions of law. One of the conditions to be fulfilled for filing a complaint under Section 138 of the Act is that, the cheque should be presented within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier. When any cheque presented for payment is dishonoured cither because of 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 he paid from that account by an agreement with the bank, the payee or holder in due course of the cheque-shall make a demand for payment of the said amount of money, by giving a notice in writing to the drawer of the cheque. The notice shall be sent within 15 days of the receipt of the information by the, payee or holder in due course from the bank regarding the return of the cheque as unpaid. The notice shall be sent within 15 days of the receipt of the information by the, payee or holder in due course from the bank regarding the return of the cheque as unpaid. On receipt of such notice, if the drawer of the cheque fails to make payment of the said money to the payee or holder in due course within 15 days, a cause of action will arise in favour of the payee or holder in due course for tiling a complaint u/s.138. Section 142(b) of the Act says that such a complaint should be filed within one month of the date on which the cause of action arises under clause (c) of the proviso to Sec. 138. The payee or holder in due course gets a further period of one month for filing the complaint from the date on which the cause of action arise. Here the Magistrate held that, the complaint should be filed within a period of 15 days of the receipt of notice by the accused/respondent. The view taken by the Magistrate is not correct. 4. Here the complainant, i.e. the payee of the cheque sent notice to the respondent on 27.7.91 informing the drawer that the cheques were presented and that they were dishonoured and that the amount should be paid by the respondent. In the complaint, it is not disclosed as to when this notice was received by the respondent. However, the respondent had chosen to sent a reply on 6.8.91 denying his liability. Therefore, it could be assumed that the notice sent by the complainant must have been received by the respondent prior to 6.8.1991. We will assume that the notice was received on 6.8.91 and the respondent had a further period of 15 days time to effect payment. But no amount was paid within that date and a cause of action arose in favour of the complainant on 21.8.91. The complainant has got a further period of one month to file the complaint. The complaint was filed on 3.9.91, as we see from the endorsement made in the complaint. But strangely enough the Magistrate had taken the sworn statement of the complainant on 23.9.91. The complainant has got a further period of one month to file the complaint. The complaint was filed on 3.9.91, as we see from the endorsement made in the complaint. But strangely enough the Magistrate had taken the sworn statement of the complainant on 23.9.91. When a complaint is filed before a Magistrate, the sworn statement of the complainant is to he taken immediately or within a reasonable time, as the Magistrate has to decide whether cognizance is to be taken or not. The adjournment of the case for an unduly long peril is certainly a bad practise not to be followed by trial magistrates. As the complaint was filed on 3.9.91, it is within the period of one month of the dale on which the cause of action arose. The acquittal of the respondent on that ground is not sustainable. 5. The next question that is to be considered is whether the cases in respect of three cheques could be tried jointly, in view of Section 219 of the Criminal Procedure Code. The three cheques were drawn on different dates and they were for different amounts. But they were presented together for payment and they were dishonoured and a single notice was sent by the complainant to the drawer. The general rule is that every distinct offence of which a person is accused, there shall be separate charge and every such charge shall be tried separately, but the accused is given a privilege and he can submit an application in writing expressing his desire mat all charges framed against him may be tried jointly. Section 219 of the Code of Criminal Procedure is an exception to the general rule and it says that, (1) when a person is accused of more offences than one of the same kind committed within the space of 12 months from the first to the last of such offences, whether in respect of the same person or not; he may be charged with, and tried at one trial for, any number of them not exceeding three. Sub-clause (2) of Sec. 219 says that for the puipose of Sec. 219(1), offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code or of any special orlocal laws. Sub-clause (2) of Sec. 219 says that for the puipose of Sec. 219(1), offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code or of any special orlocal laws. As regards the offences coming under Section 138 of the Negotiable Instruments Act, punishment prescribed is imprisonment for a term which may extend to one year or with fine which may extend to twice the amount of the cheque, or with both. 6. The counsel for the respondent argued that the fine to be imposed on the accused vary depending upon the amount for which the cheque is drawn. It is submitted that in the instant case, cheque drawn on 15.4.91 was for Rs. 20,000/- and the cheques drawn on 15.5.91 and 15.6.91 were respectively for Rs. 40,000/- and Rs. 60,000/-. Therefore, it is contended that the fine, if any, to be imposed on the respondent would vary, and hence, it can not be said that for each case there is a same amount of punishment as envisaged under Section 219(2) of the Code. Our attention was also drawn to a decision of the learned Single Judge in Crl.R.P. No. 734/92. In that case the learned Single Judge was pleased to observe that, the punishment for offence under Sec. 138 is imprisonment for a term which may extend to one year and or with fine which may extend to twice the amount of the cheque or with both; and therefore, the punishment which could be imposed on the accused are different because the amount of cheques issued are for different amounts and hence Section 219 stands in the way of joint trial. A similar view has been taken by an other learned Single Judge in Crl. A. No. 142/92. A contrary view is taken by another learned Single Judge in Crl. R.P. No. 814/92. 7. It cannot be assumed that merely because under Section 138 of the Act, a guideline is given regarding the quantum of fine to be imposed on the accused, there are different offences. The main punishment prescribed is imprisonment which may extend to a period of one year. As regards fine, it is stated that the quantum may extend twice the amount of the cheque. The main punishment prescribed is imprisonment which may extend to a period of one year. As regards fine, it is stated that the quantum may extend twice the amount of the cheque. It is important to note that the fine is not a compulsory punishment and only the maximum amount is prescribed. These guidelines do not alter the nature of the punishment. In the matter of sentence, the Magistrate is given a discretionary power depending upon the amount for which the cheque is drawn. This discretionary power in the matter of sentence does not alter the nature of the offence. So, even if the cheques had been issued for different amounts, if other conditions laid down in Sec. 219(2) are satisfied, the cases in respect of three cheques could be tried jointly. Moreover, this is a procedural law and the main question to be considered is whether the accused is seriously prejudiced by that. If the present procedure is adopted, the accused is not likely to be prejudiced and it will avoid multiplicity of cases. With due respect, we J hold that, the view expressed in Crl. R.P. No. 734/92 and Crl. A. No. 142/92 does not lay down the correct law and we agree with the view taken in Crl. R.P. No. 814/92. 8.In the result, we set aside the acquittal of the accused and remand the case to the trial court and direct the Magistrate to dispose of the case afresh. Parties are at liberty to adduce fresh evidence, if any.