CHELLAKKANNU NADAR Vs. SIMON

JUDGEMENT

(1.) SPECIAL leave is being sought for filing an appeal against the order of acquittal in a criminal prosecution for the offence under Sec.138 of the Negotiable Instruments Act, 1881 (for short "the Act"). Learned magistrate, who acquitted the accused, relied on the decision of this court in Kumaresan v. Ameerappa, (1991) 1 K.L.T. 893 and found that the complaint filed on a second cause of action with the cheque is not maintainable.

(2.) IN the trial court counsel for the accused cited a decision of Andhra Pradesh High Court in Syed Rasool and Sons v. Alidas and Company, 1992 Crl.L.J. 4048 and another decision of the Bombay High Court in Rakesh Porwall v. Narayan Joglekar, 1993 Crl.L.J. 680 in which a different view has been adopted from that of Kumaresan's case, (1991)1 K.L.T. 893. But learned magistrate expressed his difficulty to follow those two decisions since Kumaresan's decision has been rendered, by the High Court of Kerala.

(3.) FACTS of this case, in brief, are the following: A cheque issued in favour of the complainant was dishonoured by the drawee bank on 6.4.1990 on the ground of insufficiency of amount in the account of the accused. Complainant thereupon sent a notice in writing to the accused on 7.4.1990 demanding the amount. But the accused, on receipt of the notice, met the complainant and assured him that the amount would be made up in the account within four months. So, the complainant presented the cheque again on 20.8.1990, but was again dishonoured by the bank on the same ground. On 11.9.1990 the complainant sent another notice to the accused demanding payment. As the accused did not make the payment within the prescribed period even after receiving the second notice, the complaint was filed in the lower court. Accused disputes the stand of the complainant that an assurance was given to make up the amount within four months. How ever, the main contention raised in the trial court was that no complaint can be filed under Sec.142 of the Act on the strength of a second cause of; action. That contention was upheld and the learned magistrate acquitted the accused.