NELLAI STEELS Vs. K R JAYAKUMAR

JUDGEMENT

(1.) THIS revision filed under Sec. 401 of the Code of Criminal procedure, is directed against the order of dismissal passed by the learned VII metropolitan Magistrate, George Town, Madras, made in C. C. No. 6292 of 1989, dated 31. 7. 1989, challenging the propriety and legality of the same.

(2.) BRIEF facts, which are necessary to be extracted, for the purpose of this revision, are as follows: The respondent herein, for having purchased the goods from the revision petitioner to the value of Rs. 9,610on 25. 11. 1988, drew a cheque for the said amount on 26. 12. 1988 on M/s. Indian overseas Bank, bearing number 228556 and handed over to" the revision petitioner. The revision petitioner presented the said cheque for encashment, which was returned as "exceeds arrangement" and as such, it was dishonoured on 7. 3. 1989. But, however, it was represented on 10. 4. 1989' 1. 6. 1989'21. 6. 1989and 24. 6. 1989. But all the times, the said cheque was returned similarly as dishonoured. Therefore, the revision petitioner issued a registered notice to the respondent herein on 3. 7. 1989 as contemplated by law, and whereby demanded the payment of the said sum by the respondent within 15 days. Though the notice was received by the respondent on 5. 6. 1989, he neither paid any amount nor replied the said notice. Alleging thus, that the respondent had committed the offence as provided under Secs. 138 and 142 of the Negotiable instruments Act as amended, on 20. 7. 1989, a complaint was filed before the learned Magistrate and it was taken on file in C. C. No. 6292 of 1989 and consequently, sworn statement of the revision petitioner was recorded. But on considering and perusing the same, the learned Magistrate, on 31. 7. 1989 found that both the drawal of the cheque by the respondent in favour of the petitioner on 26. 12. 1988 and his first attempt to encash the same on 7. 3. 1989 were just prior to the commencement of the relevant provision of law namely 1. 4. 1989 and that, since the revision petitioner failed to issue any notice as provided by law, but however presented the said cheque into the bank, the respondent is clearly out of any criminal liability and that for the said reasoning and for want of further evidence, dismissed the complaint under Sec. 203, Crl. P. C Aggrieved, the petitioner herein, has come up with this revision.

(3.) SEC. 2 (n) of the Code of Criminal Procedure defines' 'offence' 'as any act or omission male punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under SEC. 20 of the Cattle Trespass Act, 1971'Therefore, the non-payment of the amount, by the respondent herein, after having been given an opportunity to pay the amount alone, gives the cause of action in cases of this nature as contemplated under sec. 142 (b) of the Act. An analysis of the definition for the word offence as aforesaid combined with the cause of action clause provided in SEC. 142 (b), makes it abundantly clear that the mere drawing of the cheque or the deposit of the same into the Bank for encashment or any return on dishonour of the same for any reason does not give any cause of action, which cannot be taken cognizance of by a Court of law. Under the Code of Criminal Procedure by virtue of SEC. 142 of the Negotiable Instruments Act as amended, only the non-payment by the drawer of the cheque after the legal notice and within the time stipulated by law, alone gives cause of action amounting to an offence, which alone can be taken as cause of action by a court of law as an offence under the above SECtion of law.