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2006 DIGILAW 517 (KAR)

H. NANJUNDAPPA (DECEASED) BY HIS L. RS. v. H. HANUMANTHARAYAPPA

2006-06-26

K.SREEDHAR RAO

body2006
JUDGMENT The respondent-accused had issued a cheque Ex. P. 1 for Rs.2,50,000 towards the discharge of debt liability in favour of the complainant. Ex.P. 1 on presentation was dishonoured. Statutory notice is issued and a private complaint filed. 2. Per contra, the accused denies existence of any debt liability. It is submitted that the accused had handedover a signed blank cheque to his wife which was given to the daughter of the accused and from whom the cheque is taken by the complainant and after fabrication, a false complaint is filed. The accused has produced an endorsement issued by his banker marked at Ex. D. 10 to show that the cheque in the first instance was presented on 3-6-1998 and it was dishonoured on the ground "account closed by the drawer". The complainant represented the cheque on 25-6-1998 through Syndicate Bank for collection, the cheque is dishonoured again on the ground that "account closed". 3. The Counsel Sri C.V. Nagesh relying on the decision of Supreme Court NEPC Micon Limited and Others u Magma Leasing Limited, argued that the expression "account closed" means insufficiency of funds. Therefore, there is no bar for the complainant to make successive presentations. The cause of action for filing complaint would arise only when the legal notice preceding the dishonour is issued. In the instant case it is argued that the legal notice issued after the second presentation is a valid notice and that the complaint is' within the limitation. 4. The dishonour of a cheque on the ground of "account closed" may be technically within the meaning of legal phrase of "insufficiency of funds". But in a fact situation both are not always identical. In the case of literal situation of insufficiency of funds in the account successive presentation may serve purpose. The drawer could be given opportunity to make good the funds in the account for honouring the cheque on the second presentation. But in the case of "account closed", the question of successive presentation makes no sense because the account itself is not in existence, there is no possibility of having a fruitful result by successive presentation unlike in the case of "insufficiency of funds". Therefore, whenever the cheque is dishonoured on the ground of account closed, the payee cannot resort to successive presentation to save the limitation. Therefore, whenever the cheque is dishonoured on the ground of account closed, the payee cannot resort to successive presentation to save the limitation. So also in the case of dishonour of cheque on the ground that "the signature does not tally with the specimen". 5. In the instant case, it is substantially established by the accused that the cheque was dishonoured on 3-6-1998 on its first presentation on the ground of "account closed". Therefore, the conduct of the complainant in representing the cheque on 25-6-1998 is an unwarranted and unnecessary exercise in law. The limitation should be computed from the date of dishonour on 3-6-1998. The legal notice issued by the complainant is beyond the period of 15 days envisaged under Section 138 of the Negotiable Instruments Act, 1881 and is not in accordance with law. The complaint is barred by limitation. Accordingly, the order of acquittal is confirmed. Appeal dismissed.