V VENKATESA SUBBU Vs. JAYA BHASKARAN AND CO

JUDGEMENT

(1.) CHALLENGING the judgment, acquitting the respondents/accused in respect of the offence under Section 138 of the Negotiable Instruments Act, the appellant-complainant has filed this appeal. The trial Court acquitted the accused on two grounds, namely (i) the complainant has not produced any records to show that the complainant is a partner of the partnership firm in favour of whom, the cheque has been drawn, and (ii) the cheque was dishonoured on the reason that the account was closed and therefore, Section 138 of the Negotiable Instruments Act is not attracted. Assailing the above grounds, Mr. V. Sitharanjandas, learned counsel for the appellant would read the relevant portion of the evidence and contend that there are materials through oral evidence to show that the complainant is a partner of the partnership firm and the said complaint was presented through P.W. 1, being the partner of the firm and the said material ought to have been acted upon by the trial Court, especially when there is no challenge in the said aspect. He would also contend that the ground relied on by the trial Court that the cheque was dishonoured on the reason that the account was closed, is not a valid ground, in view of the decision of the Supreme Court that mere return of the cheque on the ground that the account was closed, will not be a reason to reject the complaint, so long as there is no amount available in the Bank on the date of presentation of the cheque. I have heard Mr. P. Jagadeeswaran, the counsel for the respondents contending that grounds of acquittal are valid. The contentions urged by learned counsel for the appellant, in my view, are perfectly tenable. But, it is to be stated that even though the said grounds are not valid, this Court is of the view that the judgment of acquittal could be sustained by one other ground. Admittedly, the cheque was presented on 31-3-1994 and the same was dishonoured and returned on 5-4-1994. In respect of the said dishonour, the complainant sent notice on 18-4-1994, making the demand of cheque amount. The said notice was received by the accused, who in turn sent a reply on 30-4-1994. Thereafter, the complainant presented the same cheque second time on 31-5-1994 and the same was dishonoured. This was intimated to the accused. However, no notice was issued. Again, on 22-6-1994, the said cheque was presented and the same was dishonoured this time for the reason "account closed". This constrained the complainant to send statutory notice on 23-6-1994 and the reply was sent on 14-7-1994, which was also received by the complainant. Thereupon, the complaint was filed. Thus, it is clear that before presentation of the cheque on 22-6-1994, the said cheque was earlier presented on 5-4-1994 and the same was dishonoured and in respect of the same, notice was issued on 18-4-1994, which was replied by the accused on 30-4-1994. As such, the cause of action has already arisen in respect of the first dishonour of cheque and the consequent receipt of notice demanding the cheque amount. It is held by the Supreme Court in the case of Sadanandan Bhadran v. Madhavan Sunil Kumar, (1998) 2 Mad LW (Cri) 728 : (1998 Cri LJ 4066) that the second presentation of the cheque subsequent to the receipt of notice for the first dishonour, would create a second cause of action, which would not give rise to a fresh cause of action for filing the complaint. It is further held by the Supreme Court that the combined reading of Sections 138 and 142 of the Negotiable Instruments Act leaves no room for doubt that the cause of action within the meaning of Section 142(c) would arise only once. In this case, the cause of action has already arisen for the cheque, which has been presented on 5-4-1994 and as such, no second cause of action would arise. Therefore, on this ground, the judgment of acquittal rendered by the trial Court is to be sustained. Accordingly, the appeal is dismissed. In view of the dismissal of the appeal, Crl. M.P. No. 4064 of 1996 is dismissed. Appeal dismissed.