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2002 DIGILAW 336 (KER)

K. v. Abdul Majeed VS A. Perumal

2002-05-31

M.R.HARIHARAN NAIR

body2002
Judgment :- M.R. Hariharan Nair, J. The complainant in S.T. No. 2101 of 1992 of the Judicial First Class Magistrate's Court, Pattambi, is aggrieved by the dismissal of the complaint filed by him alleging offence under Sec. 138 of the Negotiable Instruments Act against the respondents. 2. The petitioner had alleged that Ext. P1 cheque for a sum of Rs. 16,800/- drawn on the Indian Overseas Bank, Madras was issued by the respondent to cover the liability arising from purchase of timber planks of different sizes on various occasions from the complaint and that the cheque on presentation was repeatedly dishonoured for want of funds. The last of the series of dishonouring came to the notice of the complainant through intimation sent from the bank only on 9.6.1992. Within three days the complainant sent statutory notice to the respondent. But it was not delivered and came back with the endorsement "door locked" on 29.6.1992. within one month therefrom i.e. on 28.7. 1992, the complaint was filed. 3. A perusal of the impugned judgment shows that the reason for dismissal of the complaint was the fact that the notice was issued only based on the last of the series of dishonouring by the bank and that the petitioner could have sent the notice even when the cheques was dishonoured for the first time on 18.1.1992. In that regard the learned Magistrate relied on the decision in Kumaresan v. Ameerappa (1991 (1) K.L.T. 893) to take the view that repeated presentation of cheques cannot confer cause of action on the payee to file complaint under Sec. 138 of the Negotiable Instruments Act. 4. During hearing today, it was conceded at the bar that the aforesaid decision has been overruled by virtue of the clear decisions of the Apex Court itself reported in Sadanandaan Bhadran v. Madhavan Sunil Kumar (1998(2) K.L.T. 765) and SIL Import, U.S.A. v. Exim Aides Silk Exporters (1999(2) K.L.T. 275). In the former case it was found by the Court that a complainant would get a cause of action only when three conditions are fulfilled. In the former case it was found by the Court that a complainant would get a cause of action only when three conditions are fulfilled. They are : (i) the cheques should have been presented to the bank within six months of its issue or within the period of its validity whichever is earlier; (ii) payee should have made a demand for payment by registered notice after the cheques is returned unpaid; and (iii) that the drawer should have failed to pay the amount within 15 days of the receipt of notice. It is only when all the above conditions are satisfied that a prosecution can be launched under Sec. 138 of the Negotiable Instruments Act. The cheques can be presented any number of times during the period of its validity, but the cause of action would arise only once and that is when the first notice is given to the drawer. 5. In the latter case it was found that limitation for the complaint would start running from the date of completion of offence which is the date of cause of action and that this would be the date on which the statutory notice is served on the drawer. In view of these decisions the learned Magistrate was clearly in error in discarding the complainant's case on the ground that even before the dishonour intimated to the complainant. On 9.6.1992 there have been very many presentations of the cheques and repeated dishonouring of the same. 6. The respondent has a contention that the averments in the complaint are vague in so far as the relevant dates have not been specifically pleaded. Her is a case where the complainant had produced before court all relevant documents along with the complaint itself and that will include the returned cheques, returned notice etc. This clearly give the relevant dates and the respondent cannot be heard to contend that he was not posted with the relevant information justifying a proper defence. 7. In the circumstances the dismissal of the complaint made by the learned Magistrate is unjustified and accordingly the impugned judgment is set aside. The matter is remitted to the learned Magistrate with direction to proceed with the case from the stage at which it stood as on 8.1.1993 when the impugned judgment was passed. The parties will be entitled to adduce further evidence, if any, as they may choose to adduce. The matter is remitted to the learned Magistrate with direction to proceed with the case from the stage at which it stood as on 8.1.1993 when the impugned judgment was passed. The parties will be entitled to adduce further evidence, if any, as they may choose to adduce. The matter will be decided afresh after fresh hearing. The revision petition is disposed of as above. The parties are directed to appear before the trial court without further notice on 25.7.2002.