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2012 DIGILAW 227 (KER)

Kuraisha Sadiq v. M. Abdul Kalam

2012-02-23

P.Q.BARKATH ALI

body2012
Judgment : 1. The short question which arises for consideration in this appeal by special leave under section 378(4) of the Code of Criminal Procedure is whether the notice issued under clause(b) of proviso to Section 138 of the Negotiable Instruments Act is not served on the accused and if the second notice issued after the expiry of 15 days from the date of intimation regarding the dishonor of the cheque can be treated as a valid notice? In other words, whether the second notice can be treated as a continuation of first notice? 2. The appellant is the complainant in S.T.No.364 of 2002 on the file of the Judicial First Class Magistrate-II, Thiruvananthapuram. She has filed a complaint under Section 138 of the Negotiable Instruments Act against the first respondent/accused before the lower court. The learned Magistrate by the impugned judgment dated August 22, 2005 found that the complaint was time barred and dismissed the same and acquitted the accused. The complainant has now come up in appeal with special leave challenging the said judgment of the lower court. 3. The case of the appellant/complainant, as testified by her as PW1 before the trial court and as detailed in the comp0laint, in brief, is this:- The accused borrowed Rs.1,00,000/- from the complainant and to discharge that liability, he issued Ext.P1 cheque dated October 17, 2001 drawn on the Chalai branch of the Canara Bank, which when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank. The notice Ext.P3 dated October 23, 2001 demanding the amount was returned with the endorsement “locked and left”. Therefore the complainant again sent another notice Ext.P4 on November 11, 2001. In spite of notice, the accused did not re-pay the amount. Therefore, the complainant filed the complaint before the trial court under section 138 of the Negotiable Instruments Act. 4. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant and took cognizance of the offence. The accused, on appearance before the trial court, pleaded not guilty to a charge under section 138 of the Negotiable Instruments Act. The complainant was examined as PW1 and Exts.P1 to P4 (a) were marked on her side. When the accused was questioned under Section 313 of Cr.P.C. by the learned Magistrate, the accused denied the entire transaction. The accused, on appearance before the trial court, pleaded not guilty to a charge under section 138 of the Negotiable Instruments Act. The complainant was examined as PW1 and Exts.P1 to P4 (a) were marked on her side. When the accused was questioned under Section 313 of Cr.P.C. by the learned Magistrate, the accused denied the entire transaction. The accused got himself examined as DW1 and Exts.D1 and D2 were marked on his side. 5. The learned Magistrate, on an appreciation of evidence, found that the complaint was time barred and dismissed the complaint and acquitted the accused. The complainant has challenged the said judgment of the lower court in this appeal by special leave. 6. Heard the learned counsel for the first respondent/accused and the learned counsel for the appellant/complainant. 7. The following points arise for consideration:- 1) Whether the judgment of the lower court dismissing the complaint and acquitting the accused is sustainable? 2) What is the offence committed by the accused? 3) In the event of conviction, what is the proper punishment? 8. The complainant as PW1 testified in terms of her complainant before the trial court. Nothing was brought out during her cross examination to discredit her evidence. Further, her evidence is supported by Exts.P1 to P4 (a). 9. The case of the accused as testified by him as DW1 was this: He borrowed Rs.1,00,000/-from the husband of the complainant executing an agreement mortgaging his property having an extent of 50 cents. The original document and stamp paper worth Rs. 50/- were handed over to the complainant and as demanded by the husband of the complainant, the accused gave a signed blank cheque as security also. The complainant and her husband had signed on the photocopy of the agreement agreeing to return the documents on settlement of the transaction. Ext.D1 is the photocopy of the said agreement. He has repaid the entire amount borrowed from the husband of the complainant. Even then he did not return the signed blank cheque of the accused. Misusing that blank signed cheque, complainant has created Ext.P1 cheque. 10. Both the courts below have rejected the above case of the accused. I have gone through the evidence of DW1 and Ext.D1. I find no reason to come to a different conclusion. Therefore the above case of the accused has only to be rejected. 11. Misusing that blank signed cheque, complainant has created Ext.P1 cheque. 10. Both the courts below have rejected the above case of the accused. I have gone through the evidence of DW1 and Ext.D1. I find no reason to come to a different conclusion. Therefore the above case of the accused has only to be rejected. 11. The learned Magistrate dismissed the complaint only on the ground that the complainant is time barred. The complainant issued first notice Ext.P3 on October 23, 2001. The cheque was dishonoured on October 19, 2001. Ext.P3 first notice was returned with the endorsement ‘door locked and left’. Subsequently on knowing that the accused had shifted his residence the complainant issued another notice Ext.P4 in his correct address which was served on him. The said notice was issued on November 19, 2001 which was served on the accused on November 21, 2001. The complaint was seen filed on December 18, 2001. The lower court found that second notice Ext.P4 is an invalid one, as the same was sent after 15 days of the knowledge regarding the dishonor of the cheque which is in violation of the proviso (b) to Section 138 of the NI Act. The learned Magistrate took into account the fact that first notice was redirected to the complainant on October 27, 2001 and therefore October 28, 2001 can be treated as the date on which notice was received back by the complainant and the therefore the complainant should have been filed the complaint on or before December 12, 2001, but he filed the same only on December 18, 2001 and therefore the complaint is time barred. In my view, the learned Magistrate went wrong in taking into account the first notice Ext.P3. Cause of action arises only when the accused fails to make the payment within 15 days of the receipt of the said notice as provided under the proviso (c) to Section 138 of the NI Act. As the first notice Ext.P3 was not served on the accused, the said notice cannot be treated as a valid notice. Even the complainant has no case that it is a valid notice. The second notice Ext.P4 was issued after 15 days of the receipt of the dishonoured memo from the bank by the complainant. Therefore the said notice is also not a valid one. That being so, the complaint itself is not maintainable. 12. Even the complainant has no case that it is a valid notice. The second notice Ext.P4 was issued after 15 days of the receipt of the dishonoured memo from the bank by the complainant. Therefore the said notice is also not a valid one. That being so, the complaint itself is not maintainable. 12. The counsel for the appellant argued that Ext.P4 notice, i.e. the second notice has to be treated as a continuation of the first notice Ext.P3 and that therefore the complaint is not barred by limitation, as the same has been filed within the time stipulated under the proviso (b) to Section 138 of the NI Act. There is not substance in the above contention. Proviso (b) to Section 138 provides only the issuance of one notice. If at all any other notice has to be sent, it has to comply with the said proviso, i.e. within 15 days from the date of receipt of the dishonor memo of the cheque. 13. In the present case, Ext.P4 notice is issued after the expiry of 15 days from the date of receipt of the dishonor memo. If the complainant has to issue another notice, he has to present the cheque again for encashment which would have given him a fresh cause of action. Therefore, I am not inclined to accept the above argument advanced by the learned counsel for the appellant. 14. For all these reasons, I am inclined to hold that, though for another reason the complaint filed by the complainant before the lower court is not maintainable. Therefore the finding of the lower court acquitting the accused does not warrant any interference. In the result, I find no merit in this appeal and the same is hereby dismissed.