T ANNAKODI AMMAL Vs. K ETHIRAJ

JUDGEMENT

(1.) THE petitioner is the private complainant in C. C. No. 9364 of 1989, on the file of VIIth Metropolitan Magistrate, George Town , Madras. She preferred her complaint on November 25, 1989, before the trial Magistrate, alleging that the respondent had committed offences punishable under section 138 of the Negotiable Instruments Act and section 420 of the Indian Penal Code. She had alleged that on April 15, 1989 , the respondent had handed over to her two cheques for Rs. 10, 000 and Rs. 5, 000 drawn on the State Bank of Saurashtra for the discharge of his liability as detailed in the complaint. Both the cheques were presented for encashment by the petitioner through the Indian Overseas Bank, Royapuram, soon thereafter. Both the cheques were returned by the banker, once on April 10, 1989, with an endorsement, "funds expected, present again" and again on April 12, 1989, with an endorsement "refer to drawer". THE petitioner did not choose to issue any notice to the respondent soon after the return of both the cheques by the banker on April 10, 1989, and April 12, 1989. However, both the cheques were presented over again for encashment on September 22, 1989, and they were returned on September 25, 1989, with a similar endorsement "refer to drawer". It was after this return that the petitioner forwarded a notice dated September 30, 1989, to the respondent, who had received it on October 16, 1989. A reply was issued on October 26, 1989. Since the respondent did not honour his commitment, the impugned complaint was filed within the period of limitation contemplated under section 142 (b) of the negotiable Instruments Act. THE sworn statement of the petitioner was recorded by the learned Magistrate on November 25, 1989. THEreafter, the complaint was dismissed under section 293 of the Criminal Procedure Code, on the ground that even after the first return on April 12, 1989, the petitioner ought to have taken steps by issuing a notice to the respondent and, thereafter, preferred a complaint, within 30 days as contemplated under section 142 (b) of the Act. It was further found by the learned Magistrate that the second presentation of the same cheque cannot be allowed and it was a ruse intended to avoid the bar of limitation. THE sustainability of the order of dismissal is the only question canvassed in this revision. THE petitioner's counsel, on the basis of certain decided cases, contended that a second presentation of the cheque was possible, so long as it was within a period of six months from the date on which it was drawn or within the period of its validity, whichever was earlier. He also argued, that it was the usual commercial practice to present cheques over again, even after their initial return. He urged that limitation under section 142 (b) of the Act can arise only after the drawer of the cheque fails to make payment of the amount within fifteen days of the receipt of the notice issued under section 138 (b) of the Act.

(2.) LEARNED counsel appearing on behalf of the respondent, had no specific arguments to advance but submitted that the whole matter was left to the judicial discretion of this court.