K T KURIYAN Vs. K K SREEDHARAN

JUDGEMENT

(1.) THE revision petitioner filed a private complaint alleging that the respondent committed an offence punishable under section 138 of the Negotiable Instruments Act. THE Magistrate examined the petitioner on oath, as provided in section 200 of the Code of Criminal Procedure, and postponed the issue of process since he thought that an enquiry under section 202 is necessary. No further evidence was adduced. On the ground that the offence is not disclosed, complaint was dismissed under section 203, without taking cognizance. Order is challenged in revision.

(2.) ALLEGATION in the complaint and the sworn statement of the petitioner is that the respondent took a loan of Rs. 9,250 from him on July 3, 1989, and on that day itself, he issued a post-dated cheque (date is August 15, 1989) for the same amount. Cheque was presented on August 15, 1989, but dishonoured on the same day for want of funds. The respondent was orally informed and as directed by him, cheque was again presented in December, 1989, and on February 8, 1990. On both these days also, it was dishonoured. On February 9, 1990, a notice was issued and on March 24, 1990, a complaint was filed since the amount was not paid.

(3.) WHEN the above condition is satisfied, irrespective of the mental condition of the drawer, he shall be deemed to have committed an offence, provided some other ingredients are also there. They are : (a) the cheque must be returned either because the money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank; (b) the cheque has been presented within six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (c) the payee or holder in due course makes a demand by a notice in writing to the drawer within fifteen days of the receipt of the information by him from the bank regarding the return of the cheque as unpaid; and (d) the drawer of the cheque fails to make the payment within fifteen days of the receipt of the notice. An offence is complete only if all these conditions are satisfied. The mere drawing of a cheque and its dishonour even if it constitutes an offence of cheating, as defined in section 415 of the Penal Code, will not be an offence under section 138 unless the above conditions are satisfied. So far as section 138 is concerned, mens rea is irrelevant. That is why it is specified in section 140 that it shall not be a defence in a prosecution for an offence under section 138 that the drawer had no reason to believe when he issued the cheque that it may be dishonoured for the reasons stated in section 138. As section 142 (b) indicates, the cause of action for a prosecution under section 138 will arise only under Clause (c) of the proviso to section 138 when the drawer fails to make the payment within fifteen days of receipt of the notice under Clause (b) of the proviso and there is a prohibition against taking cognizance except on a complaint in writing by the payee or holder in due course and that too except when the complaint is made within one month of the date on which the cause of action arises.