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2005 DIGILAW 336 (KAR)

Deviprasad Rai v. A. M. Ganesh Rai

2005-06-01

MANJULA CHELLUR

body2005
JUDGMENT Manjula Chellur, J.—Heard the learned Counsels on either side. 2. The Appellant before this Court is the complainant who launched prosecution against the Respondent herein for the offence punishable under Section 138 of Negotiable Instruments Act (in short, the "Act"), on the ground that the Respondent /accused issued a cheque dated 12.2.2001 for a sum of Rs. 60,000/- payable by him drawn on Vijaya Bank, Kumbra Branch and the same was returned for insufficient funds on 23.2.2001. He filed a complaint and let in evidence as well. The defence taken up by the Respondent was to the effect that no notice was served on him with regard to the dishonour of the cheque and making a demand for the payment of Rs. 60,000/-, the amount under the dishonoured cheque. The learned Judge, on perusal of the records, came to the conclusion that the signatures found at Exs. P.1 and P.7 alleged to be the signatures of accused are different and so also the complainant has failed to establish the fact that after intimation of dishonour of the cheque by the bank, he sent in writing or demanded for the payment by way of notice and the said notice was served on the accused. Therefore, the complaint came to be dismissed. Aggrieved by the same, the Appellant is before this Court. 3. Learned Counsel for the Appellant relies on Section 94 of the Act which deals with the mode in which notice may be given. He also relies on the decision in the case of K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr. reported in ILR 2000 Kar 2726. Relying on the said judgment and the provision of law, according to him, the address shown at E.P.6 - postal receipt would give rise to a presumption that such notice was sent to the address mentioned therein, therefore, in the absence of the Respondent /accused entering the witness box and denying the receipt of such notice, the presumption has to be in favour of the complainant that such notice came to be served on the Respondent /accused even under the General Clauses Act. 4. 4. As against this, learned Counsel for the Respondent /accused submits that the mandatory requirement under Section 138 of N.I. Act is to make a demand to the amount under the dishonoured cheque after receiving the intimation from the bank regarding the dishonour, therefore, unless and until such demand is made on the Respondent / accused, the cause of action to file 138 proceedings would not enure to the benefit of the complainant. Even otherwise, the material brought on record through the cross-examination of PW-1 discloses that the signature on the postal acknowledgement and the signature on the dishonoured cheque Ex.P.1 belonging to the accused, as stated by the complainant, are different and the address at Ex.P.7 is altogether a different one. Therefore, there is no compliance of requirement of law on the part of the complainant in making a demand for the payment of amount under the dishonoured cheque in accordance with Section 138 of the Act. Therefore, the order of the learned Magistrate deserves to be confirmed. 5. Section 94 of the Negotiable Instruments Act, reads as under: Mode in which notice may be given.-Notice of dishonour maybe given to a duly authorised agent of the person to whom it is required to be given, or, where he has died, to his legal representative, or where he has been declared an insolvent, his assignee, may be oral or written, may, if written be sent by post; and may be in any form; but it must inform the party to whom it is given either in express terms or by reasonable intendment, that the instrument has been dishonoured and in what way, and that he will be held liable thereon; and it must be given within a reasonable time after dishonour, at the place of business or (in case such party has no place of business) at the residence of the party for whom it is intended. It if the notice is duly directed and sent by post and miscarries, such miscarriage does not render the notice invalid. 6. Definitely, this indicates the mode in which notice may be given. Section 138 of the Act deals with the right of the complainant to launch criminal prosecution for dishonour of the cheque belonging to the drawer subject to conditions made therein. 6. Definitely, this indicates the mode in which notice may be given. Section 138 of the Act deals with the right of the complainant to launch criminal prosecution for dishonour of the cheque belonging to the drawer subject to conditions made therein. The first one is: the cheque must be presented within a period of six months from the date of cheque or within the period of its validity whichever is earlier. The next is: either the payee or the holder in due course of the cheque must make a demand for the payment of the said amount under the cheque by giving a notice in writing to the drawer of the cheque (accused) within 15 days of the receipt of information by him from the bank regarding such dishonour and lastly, if the drawer of such cheque fails to make payment of the said amount to the payee or the holder-in-due course, as the case may be within 15 days from the date of receipt of such notice, the payee or the holder-in-due course gets cause of action to launch prosecution under Section 138 of the Act. The mode of issuance of notice, no doubt, is mentioned in Section 94 of the Act. But what is required under Section 138 of the Act is when once the payee adopts the procedure under Section 138 of the Act, a demand must be made in writing. This is only to facilitate the drawer of the cheque to make payment without facing criminal or penal action. After giving 15 days' time to the payee, then, penal action could be taken by the complainant. We are not on the question of the validity of the cheque as such. It is well settled that within the period of validity of the cheque, if notice in writing demanding the amount is not made, on any number of occasions, the cheque could be presented for encashment. But once the notice demanding payment in writing is issued, on the expiry of 15 days' time after issuance of such notice, cause of action arises to the complainant. If he does not choose to take any action for that cause of action, he loses the right to take penal action subsequently by presenting the cheque again. 7. But once the notice demanding payment in writing is issued, on the expiry of 15 days' time after issuance of such notice, cause of action arises to the complainant. If he does not choose to take any action for that cause of action, he loses the right to take penal action subsequently by presenting the cheque again. 7. Therefore, the complainant must be able to establish before the Court that there was intimation from the bank regarding the dishonour of the cheque and this fact was intimated in writing making demand of the amount under the cheque to the drawer and 15 days after such service of notice, he could launch the proceedings. In order to establish that a demand in writing was made, the mode of service of notice opted by the complainant is registered post with acknowledgement due. No doubt, the very fact of production of postal receipt at Ex.P.6 primarily establishes that such notice was issued by the complainant. But once the accused denies the receipt of such notice, having regard to the facts and circumstances of the case, the Court has to see whether there is genuineness in the defence taken by the accused. Admittedly, the postal acknowledgement which is marked at Ex.P.7, no doubt, is addressed to the Respondent /accused but his residence is shown as "Kaavu" wherein admittedly, he resides at Ariyadka. In the cross-examination of PW-1, specifically it was suggested to him that the signature found at Ex.P7 is that of sendees or addressee's does not belong to the accused, his answer was that he cannot say anything about it. On the other hand, he says he learnt the same from the postman and according to the postman, it was the signature of the Respondent /accused. In that view of the matter, it was incumbent upon the complainant to examine the said postman in order to show that though the postal acknowledgement is addressed to a different village by name "Kaavu", still the notice was served on the Respondent /accused at Ariyadka. The answers and admission given by the complainant would establish the fact that there are two villages i.e., Kaavu and Ariyadka. Admittedly, the Respondent /accused is from Ariyadka. The answers and admission given by the complainant would establish the fact that there are two villages i.e., Kaavu and Ariyadka. Admittedly, the Respondent /accused is from Ariyadka. In that view of the matter, if the complainant was not able to definitely say that the signature found at Ex.P.7(a) belongs to the Respondent /accused, the burden is on him to establish that said signature does belong to the Respondent /accused. But unfortunately, such burden was not established by the complainant. The trial Court after going through the entire material on record has rightly come to the conclusion that the complainant failed to establish that he made demand in writing intimating the Respondent /accused about the dishonour of the cheque prior to launching prosecution for offence punishable under Section 138 of the Act. I do not find any good reason to interfere with the said order. Accordingly, the appeal stands dismissed.