V SURESH KUMAR Vs. C SREEKRISHNAN

JUDGEMENT

(1.) THE accused in C. C. No. 51 of 1993 on the file of the Chief Judicial Magistrate, Nagercoil, has filed this petition under section 482 of the Criminal Procedure Code, for quashing the said C. C. No. 51 of 1993. THE respondent has filed a complaint against the petitioner for an offence under section 138 of the Negotiable Instruments Act, 1881. THE allegations in the complaint are briefly stated as follows : THE respondent has purchased 100 bags of rice on August 10, 1992, from the petitioner as per credit bill No. 69 for Rs. 60, 540 and has taken delivery of the said 100 bags of rice. THE respondent issued a cheque on Canra Bank, Nazarath, dated September 22, 1992, for a sum of Rs. 30, 540 in favour of the petitioner towards the part payment of the abovesaid credit bill. When the petitioner presented the said cheque on September 22, 1992, through his bank, namely, State Bank of India, Vadiveeswaram Branch, Nagercoil, for collection, it was returned on October 22, 1992, with an endorsement "funds insufficient". THE respondent knowing fully well that he did not have enough funds in his bank account issued the cheque, with an intention to cheat the petitioner. On November 2, 1992, the petitioner sent a registered notice to the respondent through his advocate as per section 138 of the Negotiable Instruments Act. THE respondent received the notice on November 5, 1992, but he did not send any reply. As per the settlement letter dated November 27, 1992, written by the respondent's father in which he has agreed that he will settle the abovesaid cheque claim amount of Rs. 30, 450 on December 11, 1992. So, this petitioner did not take any legal steps against the respondent. But the respondent has not settled the claim on December 11, 1992, as per his letter dated November 27, 1992.Again the petitioner, after sending a letter dated February 13, 1993, by certificate of posting, informing the respondent of the date of re-presentation of the said cheque, he re-presented the cheque on February 17, 1993, but it was returned on February 22, 1993, with an endorsement "insufficient balance". THE petitioner sent a notice on March 6, 1993, to the respondent, in which the respondent was given 15 days' time to repay the amount. THE respondent has received the notice on March 8, 1993, and sent a reply on March 11, 1993, containing false averments. Even after the expiry of 15 days from the date of receipt of the notice, the respondent did not pay the amount. Thus, he has committed an offence under section 138 of the Negotiable Instruments Act and hence the complaint.

(2.) MR. P. Kulandaivelu, learned counsel appearing for the petitioner, would submit that in paragraph 6 of the complaint, it is stated that the petitioner's father had given a settlement letter dated November 27, 1992, to pay the cheque amount of Rs. 30, 450 but had not paid that amount and as the amount due under the cheque has been novated by the settlement letter dated November 27, 1992, the only course open to the respondent is to proceed against him in a civil court and no complaint would lie. I am unable to accept this submission for the following reasons : According to the complaint, the cheque issued by the petitioner to the respondent-complainant, was with him, but the father had executed a settlement letter agreeing to settle the claim on December 11, 1992. But the respondent did not settle the claim on December 11, 1992, till which date, he waited. So, the respondent had again presented the cheque for encashment. It does not appear that there was a substitution by a new agreement. The complainant had only waited for some time because of this development. That is all. While so, his contention that the only remedy open to the respondent-complainant is only through the civil court, is not tenable.In para 7 of the complaint, it is stated that the cheque was re-presented on February 17, 1993, and it was returned on February 22, 1993, with an endorsement of "insufficient of balance". The respondent had issued a notice on March 6, 1993. It was received by the petitioner on March 8, 1993. He sent a reply on March 11, 1993, containing false averments. His complaint was filed on April 22, 1993. On the above facts, MR. P. Kulandaivelu would submit that so far as the accused is concerned, the offence was committed on March 11, 1993, when he sent a reply denying the allegations. He would further submit that when there is a specific denial by the accused, from the point of the accused, the cause of action would arise on the very same date of denial and not the expiry of 15 days provided under section 138(c) of the Negotiable Instruments Act. To consider the submission, section 138(c) needs extraction and it reads as follows : "138. Dishonour of cheque for insufficiency, etc., of funds in the account.---Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both : Provided that nothing contained in this section shall apply unless ---....(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of receipt of the said notice."