BANK OF BARODA Vs. BHILIP THOMAS

JUDGEMENT

(1.) The appellant did not succeed in the prosecution launched against the respondent alleging offence punishable under Section 138 of the Negotiable Instruments Act. The respondent/accused was acquitted. Therefore this appeal The appellant is a bank offering facility of credit card. The respondent availed that facility. The accused availed the credit facility to the tune of Rs. 138598/-. In part repayment there of, he issued Ext.P2 cheque dated 23.6.97 for an amount of Rs. 127000/-. This was presented for encashment on 17.10.97. It bounced for want of sufficient amount in the account maintained by him. The appellant represented the cheque again on 3.11.1997. Then also the same story repeated There upon appellant issued a notice Ext.P4, on 10.11.97. It was duly acknowledged by the accused as is revealed by one among the documents produced as Ext.P4 series. It was not responded either in the form of reply or repayment. This resulted in the complaint.

(2.) Answering the point on the maintainability of the complaint on the basis of the evidence deposed through PW1 in negative, as being time barred, reckoning the limitation period from the date of information given to the accused about the dishonour of the cheque drawn by him, immediately after its first presentation on 17.10.1997, the accused was acquitted.

(3.) Assailing this acquittal, it is contended by the counsel for the appellant that the cause of action for the case had arisen so far as the appellant is concerned only when no payment was made by the accused in spite of the receipt of notice issued by him. It is true that the evidence given by PW1, the Manager of the Bank reveals that immediately after bouncing of the cheque on the first presentation on 17.10.97, an information in that regard had been passed over to the accused. This information was brought out during cross examination of PW1. In the chief examination PW1 had deposed that on dishonour on the first occasion, a debit advice was given to the accused. It is contended by the counsel that this does not form a statutory demand in terms of Clause (b) of proviso to Section 138 to give rise to a cause of action, depending upon information so furnished. It was only a written communication in the usual way of business of the bankers, the appellant being a banker. In this regard the decisions reported in M/s. Uniplas India Ltd. v. State of NCT of Delhi and Dalmia Cement Ltd. v. Galaxy Traders and Agencies Ltd. are heavily relied on. Referring to the decision reported in Sadanandan Bhadran v. Madhavan Sunil Kumar 1998 (2) KLT 765, it is submitted by the counsel that the facts there are distinguishable, as there was no demand in the debit memo sent to the accused in this case following the first dishonour 17.10.1997. Therefore, as the demand for repayment of the amount covered by the cheque in question, in terms of Clause (b) of proviso to Section 138 was made by the appellant only after the second presentation on 3.11.1997, the cause of action had arisen in this case with reference to the second presentation and issuance of notice there upon and its acknowledgment by the accused. The filing of the complaint on 24.12.1997 is therefore within the time limit. The court below fell in error in reckoning the debit information given to the accused as the point around which the cause of action had arisen, it is submitted.