MAHADEVAN SUNIL KUMAR Vs. BHADRAN

JUDGEMENT

(1.) The petitioners are accused in S.T. 1205 of 1989 on the file of Additional Judicial First Class Magistrate's Court, Kollam. Annexure-I complaint was filed by respondents land 2 alleging that the petitioners-accused committed offences punishable under S.138 of the Negotiable instruments Act and S.420 of the Indian Penal Code. The gist of the allegation against the petitioners is that on 31-7-89 both these petitioners along with the mother of 2nd petitioner approached 1st respondent and asked for a loan of Rs.60,000/- In the complaint it is alleged that the 1st respondent was made to believe that there was sufficient fund in the bank account maintained by the accused and on the basis of this representation the 1st respondent gave Rs.60,000/- to the 1st accused. The 1st respondent presented the cheque for payment on 1-9-89 and the cheque was dishonoured. The 1st respondent met the petitioner. However, the amount was not paid. Thereafter on 12-10-89 the cheque was again presented for payment. Then also it was dishonoured. Notices were sent to the petitioners-accused. The 2nd accused refused to accept the notice and the acknowledgment in respect of the notice issued to the 1st petitioner was not received by the 1st respondent. No amount was paid by the petitioners and, therefore, the complaint was filed.

(2.) The petitioners seek to quash the complaint mainly for two reasons. The learned counsel for the petitioners submits that the cheque was presented on 1-9-89 and it was dishonoured and there arose a cause of action for the 1st respondent to file a complaint under S.138 of the Negotiable Instruments Act. However, no such complaint was filed on the basis of dishonour of cheque on 1-9-89. The petitioners were also not served with a notice when the cheque was dishonoured on 1-9-89. The learned counsel for the petitioners contends that a second presentation of the cheque is not contemplated and there cannot be any prosecution for the offence under S.138 of the Negotiable Instruments Act on the basis of the second presentation of the cheque. l am unable to accept this contention. Under the provisions of the Negotiable Instruments Act a cheque drawn by the drawer will be valid for a period of 6 months. The payee or holder in due course is entitled to present a cheque for payment at any time within the period of 6 months. For successful prosecution of an offence under S.138 of the Act a payee or holder in due course must have presented the cheque before the bank for payment. If there is a dishonour of the cheque on presentation for payment he must issue a notice in writing within a period of 15 days to the drawer under S.138(b) of the Act and he must be given 15 days time to pay the amount covered by the cheque and if the drawer fails to make the payment of the said amount to the payee within 15 days of the receipt of such notice under S.142(b) of the Act, the payee or holder in due course is entitled to file a complaint within one month of the date of cause of action that arose under Clause (c) of the proviso to S.138. From these provisions, it is clear that cause of action for filing the complaint may arise on several occasions and the payee or holder in due course is entitled to present the cheque at any time within a period of 6 months from the date at which it was drawn and for filing the complaint he should have served notice of such dishonour to the drawer. The payee or holder in due course can make a second presentation of the cheque and if other conditions are fulfilled he can launch a complaint on the basis of the second dishonour of the cheque as the cheque would remain valid for a period of sit months.

(3.) Another contention raised by the petitioners counsel is that the 1st petitioner did not receive any notice and so long as he has not received any notice under S.138(b) of the Act there cannot be any prosecution for the offence under S.138. It is contended that the cause of action for the offence under S.138 would arise only after a period of 15 days of the receipt of the said notice. The 1st respondent would contend that the notice was issued to the 1st petitioner, however, the acknowledgment was not received. Under S.27 of the General Clauses Act the service shall be deemed to be effected if a properly addressed pre-paid letter containing the document is sent by registered post unless the contrary is proved. S.27 of the General Clauses Act reads as follows: