SWARNALATHA Vs. CHANDRAMOHAN

JUDGEMENT

(1.) This is an appeal filed by the complainant in C.C. No. 698/91 on the file of J.F.C.M. 1, Kannur against the acquittal of the respondent The complaint was filed under S.138 of the Negotiable Instruments Act and it was alleged that the respondent had drawn three cheques in favour of the complainant and when they were presented for payment, they were dishonoured and thus the respondent committed the offence under the Act When this appeal came up for hearing before the learned Single Judge, question arose as to whether a single complaint could be filed in respect of three cheques. The learned Single Judge disagreed with the view expressed in Crl. R.P. No. 7 34/94 and was pleased to refer the matter to a Division Bench.

(2.) We heard the Appellant's counsel and also the counsel for the respondent. The respondent herein was acquitted on the ground that complaint was barred by time. The Magistrate held that as per S.138(c), the complaint should have been filed within 15 days of the receipt of the notice by the accused.

(3.) At the outset we may state that, view taken by the Magistrate is incorrect and contrary to the provisions of law. One of the conditions to be fulfilled for filing a complaint under S.138 of the Act is that the cheque should be presented within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier. When any cheque presented for payment is dishonoured either because of the amount of 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 with the bank, the payee or holder in due course of the cheque shall make a demand for payment of the said amount of money, by giving a notice in writing to the drawer of the cheque. The notice shall be sent within 15 days of the receipt of the information by the payee or holder in due course from the bank regarding the return of the cheque as unpaid. On receipt of such notice, if the drawer of the cheque fails to make payment of the said money to the payee or holder in due course within 15 days, a cause of action will arise in favour of the payee or holder in due course for filing a complaint under S.138. S.142(b) of the Act says that such a complaint should be filed within one month of the date on which the cause of action arises under clause (c) of the proviso to S.138. The payee or holder in due course gets a further period of one month for filing the complaint from the date on which the cause of action arise. Here the Magistrate held that, the complaint should be filed within a period of 15 days of the receipt of notice by the accused/respondent. The view taken by the Magistrate is not correct.