L SASHIKALA Vs. INTEGRATED FINANCE COMPANY LIMITED

JUDGEMENT

(1.) THE petition is to call for the records connected with c. C. No. 9757 of 1992, on the file of the XIIIth Metropolitan Magistrate Court , egmore,Madras, filed by the respondent under section 138 of the Negotiable Instruments Act, 1881, and to quash the same. It is averred in the complaint as follows : "the complainant submits that the accused herein entered into a hire-purchase agreement with the complainant on June 25, 1990 , and had taken delivery of one Yamaha RX 100 motorcycle agreeing to pay a total sum of Rs. 30, 990 towards hire charges at the rate of rs. 738 per month for a period of 48 months. THE accused miserably failed and neglected to pay the monthly hire charges regularly. Towards the monthly hire charges payable by her on April 1, 1992, May 1, 1992, and June 1, 1992, the accused issued cheques bearing Nos. 360411, dated April 1, 1992, 360412, dated may 1, 1992, and 360413, dated June 1, 1992, respectively, each for Rs. 738 all the cheques drawn on Canara Bank, Kuzhithurai Branch, Kanyakumari. THE said cheques were presented for collection first and they were dishonoured for want of sufficient funds in her account. At the request of the accused, all the three cheques were represented for collection on July 11, 1992 , by the complainant with their banker, State Bank of Saurashtra, mount Road Branch, Woods Road , Madras

(2.) ALL the three cheques were dishonoured and returned by the accused's banker on July 17, 1992 , with the endorsement'insufficient funds'. The complainant issued three separate notices dated July 27, 1992 , to the accused calling upon her to make the payment towards the said three dishonoured cheques. ALL the three notices were received by the accused on August 18, 1992. Even after receipt of the said notices, the accused has failed to pay the amounts towards the said dishonoured cheques. The complainant submits that the accused has issued the said three cheques deliberately without having sufficient funds in her bank account. Issuing a cheque without having sufficient funds in the accounts is a criminal offence punishable under section 138 of the Negotiable Instruments Act (as amended by Act 66 of 1988 ). By having issued the said three cheques without having sufficient funds in the bank account to honour the cheques, the accused has rendered herself liable to be criminally prosecuted and punished for the offence under section 138 of the Negotiable instruments Act (as amended by Act 66 of 1988 ). "* It is contended by learned counsel for the petitioner that the cheques were originally presented and were dishonoured and the respondent once again presented the same on July 11, 1992, for the second time 'once again the three cheques were dishonoured and later on the respondent has filed the complaint and, therefore, there is infirmity and the entire proceedings ought to be quashed. I am unable to accept the contention of learned counsel for the petitioner. It is well settled that under section 138 (a) of the Negotiable Instruments Act, the cheque can 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, and as per section 142 (b), the complaint should be made within one month of the date on which the cause of action arose under clause (c), proviso to section 138. It has been held by this court in N. W. Ravichandran v. Vellaiyappan [1992] MLJ (Crl.) 618 that within a period of six months the cheque can be presented any number of times and there is no infirmity in such presentation and it is observed as follows : "there is no bar for presentation of the cheque at a later point of time also and if it was dishonoured for the reasons stated in section 138 of the Act and the further requirements are complied with, certainly the offence is made out. The first presentation and dishonour of the same would not stand as a bar for the second presentation and commission of an offence under section 138, Negotiable Instruments Act, in respect of the dishonour for a second time. "* It is also contended by learned counsel for the petitioner that he issued post-dated cheques at the time of entering into the hire-purchase agreement and if the date of handing over the cheque is taken into account, the period of six months would have lapsed. I am unable to accept this contention of learned counsel for the petitioner. Under section 118 (b) of the Negotiable Instruments Act, there is a presumption regarding the date of the negotiable instrument. The rebuttal to the presumption can be done by leading evidence before the trial court. This point has to be gone into only before the trial court since under section 482 of the Criminal Procedure Code this court has to see whether a prima facie case has been made out on the averments in the complaint and the documents enclosed along with the complaint. As no other document is enclosed along with the complaint to corroborate the contention of learned counsel for the petitioner, the same is rejected. However, it is open to the petitioner to urge this point before the trial court. In view of the above, the petition is dismissed. .