BALACHANDRAN Vs. SAJAN MATHEW

JUDGEMENT

(1.) Can there be a criminal prosecution for the commission of offences under Sec. 138 of the Negotiable Instruments Act,1881(in short, 'NI Act') in a single complaint for the dishonor of four cheques for which the complainant had issued a consolidated single notice under Sec. 138(b) of the NI Act? This is the precise legal issue to be resolved in this case.

(2.) The petitioner herein is being prosecuted by the first respondent under Sec. 138 of the NI Act for the dishonour of four cheques dtd. 10/2/2018, 10/3/2018, 25/2/2018 & 25/3/2018 for the amounts of Rs.25,000.00, Rs.25,000.00, Rs.1,25,000.00 & Rs.1,00,000.00, respectively. The aforesaid cheques were said to have been issued by the petitioner, along with another cheque dtd. 10/1/2018 for an amount of Rs.25,000.00, towards repayment of an amount of Rs.3,00,000.00 which he owed the first respondent. Though all the above cheques were dishonoured due to insufficiency of funds in the account of the petitioner, the petitioner is said to have paid Rs.25,000.00 after the receipt of the consolidated legal notice issued by the first respondent under Sec. 138(b) of the NI Act, calling upon him to make payment of the amounts covered by all the five cheques. In respect of the remaining four cheques, the first respondent instituted S.T.No.143/2019 before the Judicial First Class Magistrate Court-II, Kottayam. In the aforesaid case, the petitioner herein took up the contention that the criminal prosecution is prima facie not maintainable, since there cannot be a consolidation of four offences under Sec. 138 of the NI Act in a single complaint. The dictum laid down by a learned Single Judge of the Gujarat High Court in Vani Agro Enterprises v. State of Gujarat & Anr. [2010 (1) KHC 504] which was upheld by the Hon'ble Supreme Court in (2021) 16 SCC 132, has been relied on by the petitioner in support of the challenge against the maintainability of the criminal prosecution against him. By the order dtd. 24/9/2020, the learned Magistrate refused to accept the above challenge stating the reason that, since a single consolidated notice had been issued by the complainant for the dishonour of all the cheques, a single offence is constituted when the petitioner failed to make payment in accordance with the demand in the aforesaid notice, and hence the criminal prosecution upon a single complaint is maintainable. It is aggrieved by the aforesaid order of the learned Magistrate that the petitioner is here with this petition filed under Sec. 482 of the Code of Criminal Procedure, 1973(in short, 'Cr.PC') to set aside the above order, and to quash the said complaint.

(3.) Heard the learned counsel for the petitioner, the learned counsel for the first respondent and the learned Public Prosecutor representing the State of Kerala.