(1.) A question has come up for consideration of this Court that when a notice sent by the payee to the drawer of the cheque, intimating him of the dishonour of the cheque and demanding the cheque amount, is returned unserved for the reason of addressee having left the place and notice could not be served for want of latest address of the drawer, whether would enable the payee to present the said cheque again, and then file a complaint, on the cause of action thus arising due to the dishonour of the cheque, on the second presentation.
(2.) The facts of the case are that Ext.P-1 cheque was presented for clearance. It was returned dishonoured as per Ext.P-2 memo dated 1.9.1989. The appellant issued notice dated 9.9.1989. When the postman took the registered letter to the addressee, he found that the addressee had gone to Velloor. He could not get Velloor address of the addressee. Therefore, he returned the notice unserved, putting the date of return as 10.9.1989. The same has been marked as Ext.P-4. After receipt of Ext.P-4, the complainant presented Ext.P-1 cheque for clearance again. It was returned dishonoured on 7.10.1989. Thereafter, he issued notice dated 12.10.1989. However, neither the registered article nor the postal acknowledgement card was received. The complainant filed complaint against the respondent, accused, on 21.11.1989. According to the respondent, as the cause of action arose, after the return of Ext.P-4 notice, on 10.9.1989, received by the sender on 20.9.1989, and the complaint filed on 21.11.1989, as stated above, was belated. The respondent also took up the contention that the cause of action arose on sending of Ext.P-4 notice and, therefore, presentation of the cheque for the second time, after receipt of Ext.P-4 notice, is against law, there being no subsequent cause of action. Hence the complaint is not maintainable. The Court below, accepting the principle laid down in Sadanandan Bhadran v. Madhavan Sunil Kumar, 1998 (2) KLT 765 (SC) = (1998) 6 SCC 514, dismissed the complaint. Hence this appeal.
(3.) In Sadanandan Bhadran's case, cited above, on dishonour of the cheque, a notice was issued which was received by the drawer and he requested for time for payment. Therefore, the sender did not file any complaint. But, the drawer failed to pay the cheque amount as agreed. The sender re-presented the cheque for clearance. On dishonour, for want of sufficient funds, he filed complaint. Accepting the Division Bench ruling of this Court in Kumaresan v. Ameerappa, 1991 (1) KLT 893, that there could not be more than one cause of action in respect of a single cheque, the complaint was found to be not maintainable and, therefore, the Magistrate dismissed the complaint and acquitted the accused. It was upheld, by the High Court, relying on Kumaresan's case. This decision has been later, overruled by a Full Bench of this Court in Lakshmanan v. Sivaramakrishnan, 1995 (1) KLT 259 (F.B.) = 1995 Crl.L.J. 1384 (Ker.) (F.B.). The said finding of the High Court was challenged before the Apex Court. The Court consolidated and considered three different propositions that have been laid down by one or the other High Courts of India. After interpreting Section 138 and Section 142 of the Negotiable Instruments Act, 1881 (in short 'the Act') together with interpretations of the Act by various High Courts, the supreme Court drew up premises to prove an offence under Section 138 of the Act as;