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2004 DIGILAW 1393 (MAD)

R. Marimuthu v. P. Palaniammal

2004-10-26

S.SARDAR ZACKRIA HUSSAIN

body2004
Judgment :- The accused in C.C.No.556 of 2001 on the file of the Judicial Magistrate No.I Court, Pondicherry has filed this Criminal Original Petition under Section 482 of Criminal Procedure Code to quash the entire proceedings in the said case. 2. The respondent/complainant filed the private complaint on 6.12.2001 which was taken on file in C.C.No.556 of 2001 under Sections 138 and 142 of Negotiable Instruments Act. In the complaint it is stated that two cheques, viz., bearing No.036125 dated 10.4.2001 for Rs.5,000/- and another cheque bearing No.036126 dated 15.4.2001 for Rs.9,195/- drawn on Karur Vysia Bank Ltd., Chennai Branch and issued by the accused to the complainant for the amount payable, were dishonoured when presented for collection and returned on 21.5.2001 due to "Insufficiency of Funds". Hence, the complainant approached the accused, for which the accused advised to present the cheques for collection at the end of July, 2001. The complainant again presented the said two cheques for collection on 30.7.2001 and the same were also returned on 10.8.2001 with a memo "Refer to Drawer". Hence the complainant after causing lawyer notice dated 21.8.2001, has filed the complaint, which was taken on file as C.C.No.556 of 2001 on the file of the Judicial Magistrate No.I Court, Pondicherry. 3. This Criminal Original Petition is filed by the accused disputing the liability and stating that both the cheques were issued as a security for the cumulative deposits made by the respondent in one India Housing Finance & Development Ltd., and this petitioner is a Director of M/s.Nutech Financial Consultants Ltd., and it is also stated that there was no debt or amount or liability payable by the petitioner. It is further stated that the complaint was filed after causing second notice dated 21.8.2001 and before such notice, the complainant also sent lawyer notice on 24.5.2001 and therefore, no new cause of action had arisen to prefer the complaint on the basis of the second notice dated 21.8.2001. Hence, this Criminal Original Petition is filed to quash the proceedings in C.C.No.556 of 2001 on the file of the Judicial Magistrate No.I Court, Pondicherry. 4. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. 5. Hence, this Criminal Original Petition is filed to quash the proceedings in C.C.No.556 of 2001 on the file of the Judicial Magistrate No.I Court, Pondicherry. 4. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. 5. Inasmuch as the complaint was taken on file as per second notice issued on 21.8.2001 and after causing notice on 24.5.2001 that the two cheques issued on 10.4.2001 and 15.4.2001 when presented for collection were returned as "Insufficiency of Funds" and "Refer to Drawer", the learned counsel for the revision petitioner vehemently contended that inasmuch as the cause of action once set in motion by issuance of the notice on 24.5.2001, the same cannot be unsettled and on the basis of second notice on 21.8.2001 the complaint taken on file is not proper, in that by issuance of second notice, no new cause of action had arisen to prefer such complaint. The learned counsel further submitted that the liability of the cheque amounts is also disputed. The learned counsel for the petitioner has relied on the decision of the Apex Court in Sadanandan Bhardan - vs. - Madhavan Sunil Kumar reported in (1998)6 Supreme Court Cases 514, in which the Supreme Court has ruled in paragraph 4:- "... clause(a) of the proviso to Section 138 does not put any embargo upon the payee to successively present a dishonoured cheque during the period of its validity. This apart, in the course of business transactions it is not uncommon for a cheque being returned due to insufficient funds or similar such reasons and being presented again by the payee after sometime, on his own volition or at the request of the drawer, in expectation that it would be encashed. Needless to say, the primary interest of the payee is to get his money and not prosecution of the drawer, recourse to which, normally, is taken out of compulsion and not choice. For the above reasons it must be held that a cheque can be presented any number of times during the period of its validity." The Apex Court has also ruled in paragraph 9:- "... On each presentation of cheque and its dishonour, a fresh right - and not cause of action - accrues in his favour. For the above reasons it must be held that a cheque can be presented any number of times during the period of its validity." The Apex Court has also ruled in paragraph 9:- "... On each presentation of cheque and its dishonour, a fresh right - and not cause of action - accrues in his favour. He may, therefore, without taking pre-emptory action in exercise of his such right under clause (b) of Section 138, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. But once he gives a notice under clause (b) of Section 138, he forfeits such right for in case of failure of the drawer to pay the money within the stipulated time, he would be liable for offence and the cause of action for filing the complaint will arise. Needless to say, the period of one month for filing the complaint will be reckoned from the date immediately following the day on which the period of fifteen days from the date of the receipt of the notice by the drawer expires." 6. The learned counsel for the respondent/complainant argued that since after issuance of the first notice dated 24.5.2001, on contact, the accused advised to present the cheques for collection at the end of July, 2001, again after presenting the two cheques for collection which were also returned dishonoured as "Insufficient Funds", after causing lawyer notice again on 21.8.2001, the complaint has been filed since new cause of action had arisen to the complainant, in the said circumstances and considering the request of the accused to present the cheques for collection at the end of the July, 2001 when contacted after issuing the notice dated 24.5.2001. The learned counsel also submitted that the burden is on the accused to disprove the liability of the cheque amounts and which can be gone into only during trial. The learned counsel for the respondent/complainant has relied on the following decisions:- (1) M/s.M.M.T.C. Ltd., and another - vs. - M/s.Medchl Chemicals and Pharma (P) Ltd., and another reported in A.I.R.2002 Supreme Court 182 in which the Supreme Court has ruled in paragraph 16:- "There is therefore no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the respondents. This they have to discharge in the trial." (2) Dalmia Cement (Bharat) Ltd., - vs. - Galaxy Traders and Agencies Ltd., and others reported in 2001 Company Cases 472 (Vol.104), in which it is stated:- "A cheque issued by the accused in favour of the complainant was returned unpaid by the bank on account of insufficiency in the account of the accused. The complainant on June 13, 1998, issued notice in terms of section 138 of the Negotiable Instruments Act, 1881, calling for payment within 15 days of receipt of the notice. The accused received the notice on June 15, 1998. The accused by letter dated June 20, 1998, intimated that they had in effect received empty envelopes without any contents and requested the complainant to mail the contents. This letter was received by the complainant on June 30, 1998, on which date time for filing the complainant under Section 138 was to expire. Out of abundant caution the complaint presented the cheque again on July 1, 1998, and it was dishonoured by the bank on July 2, 1998. A registered statutory notice was issued to the accused intimating the dishonour of the cheque and demanding payment. The accused received the said notice on July 27, 1998, but did not make the payment. The complainant filed the complaint on September 9, 1998, admittedly, within the statutory period from the second notice." On the said facts, the Supreme Court has ruled:- "... The accused had exercised the option to accept the averments made by the accused in their letter dated June 20, 1998, and issued a fresh notice after again presenting the cheque. The accused had not denied the issuance of their letter dated June 20, 1998. Despite admitting its contents, they opted to approach the High Court for quashing the proceedings. The High Court fell in error in not referring to the letter of the accused dated June 20, 1998, and quashing the proceedings. The receipt of the second notice had also concededly not been denied by the accused. The order quashing the complaint was to be set aside and the trial magistrate directed to proceed against the accused in accordance with the provisions of law and expeditiously dispose of the complaint." 7. The receipt of the second notice had also concededly not been denied by the accused. The order quashing the complaint was to be set aside and the trial magistrate directed to proceed against the accused in accordance with the provisions of law and expeditiously dispose of the complaint." 7. The facts are not in dispute that the accused issued two cheques, viz., bearing No.036125 dated 10.4.2001 for Rs.5,000/- and another cheque bearing No.036126 dated 15.4.2001 for Rs.9,195/-, and both the cheques were dishonoured when presented for collection and returned on 21.5.2001 due to "insufficiency of funds", which made the complainant to issue lawyer notice dated 24.5.2001. The notice was not replied immediately. According to the complainant, as requested by the accused, he again presented the cheques for collection on 30.7.2001 and the same was also returned on 10.8.2001 with a memo "Refer to Drawer". Therefore, the complainant caused lawyer notice again on 21.8.2001, which was served upon the accused on 24.8.2001, and since no reply was received from the accused, the complaint was filed on 6.12.2001 which is in time pursuant to such notice. 8. After the issuance of the first notice on 24.5.2001, the reply was sent by the accused only on 6.8.2001. In the said reply notice the liability for issuance of two cheques have been disputed. Such contention will be gone into only at the time of enquiry. Inasmuch as the complaint was filed after the issuance of second notice dated 21.8.2001, since the cheques were presented second time for collection on 30.7.2001 as requested by the accused after issuance of first notice on 24.5.2001, the complaint as filed is in time being within the statutory period from the date of the issuance of second notice, as per ruling by the Supreme Court in Dalmia Cement (Bharat) Ltd., - vs. Galaxy Traders and Agencies Ltd., and others reported in Vol.104 Company Cases 472 (cited supra). Therefore, no case is made out by the petitioner/accused to quash the proceedings in C.C.No.556 of 2001 pending on the file of the Judicial Magistrate No.I Court, Pondicherry. 9. In the result, this Criminal Original Petition fails and is dismissed. Consequently, the petition Crl.M.P.No.290 of 2002 is closed.