SAVTTHA ENTERPRISES Vs. K RAVINDRANATH SHETTY

JUDGEMENT

(1.) THE brief facts leading to this petition are that the petitioner borrowed a loan of Rs. 5 lakhs from the respondent and in repayment of the said loan amount, the petitioner issued a cheque on 15-5-1993 for a sum of Rs. 5 lakhs. The said cheque when presented for encashment was returned with an endorsement 'exceeds arrangement'. Thereafter, the respondent got issued a legal notice on 27-5-1993 under Register Post acknowledgment Due and Certificate of Posting to the petitioner which was duly served on him. After receipt of the notice, the petitioner approached the complainant and requested him to present the cheque once again and assured that the bank will honour the cheque. Accordingly, the respondents presented the cheque once again which was dishonoured with an endorsement "exceeds arrangement". Hence the respondent filed a complaint under Section 200, Criminal Procedure Code for the alleged offence under Section 138 of the Negotiable Instruments Act (for short the Act' ). After taking cognizance of the offence, the learned Magistrate recorded the sworn statement and directed to issue summons to the petitioner in C. C. No. 235 of 1993 on the file of the I Additional Chief Judicial Magistrate, Mangalore, dakshina Kannada. The said order is questioned by the petitioner under Section 482, Criminal Procedure Code.

(2.) HEARD the learned Counsel on both sides.

(3.) THE learned Counsel for the petitioner has vehemently argued that the respondent has got issued notice only in so far as the dishonour of the cheque for the first time is concerned. But admittedly, the respondent has re-presented the same for the second time and the said cheque was dishonoured, but the respondent has not issued any notice as contemplated under section 138 of the Act. He also submitted that for every dishonour of the cheque notice will have to be issued without which the complaint is not maintainable.