T VANAMAMALAI Vs. T D SUNDARA VARADHAN

JUDGEMENT

(1.) THE former action had been resorted to, to quash the proceedings in C. C. No. 310 of 1992, on the file of the Judicial Magistrate no. II, Poonamallee, initiated by the respondent-complainant against the petitioner-accused for the alleged offence under section 138 of the Negotiable instruments Act, 1881 (Act No. XXVI of 1881--as amended by Act 66 of 1988--for short "the Act" ). An alleged true copy of the complaint had been annexed in the typed set of papers and it revealed at the foot of it as below : "dated at Poonamallee this 23rd day of November, 1992. " An argument had been projected on the basis that if the said complaint had been filed on November 23, 1992, then in such case, the complaint must be construed to have been filed even before the cause of action arose. (a) Under section 138 of the Act, a cheque has to be presented to the bank within a period of six months from the date on which it was drawn or within the period of its validity, whichever is earlier. (b) In case the cheque so presented to the bank is returned, any body--the payee or the holder in due course of the cheque, as the case may be has to make a demand for payment of the said amount of money, by giving a notice, in writing, to the drawer of the cheque within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. (c) If the drawer of the said cheque fails to make the payment of the amount of the money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice, then the cause of action accrues for the initiation of proceedings against the drawer of such a cheque. (d) THE cause of action so accrued enures for a period of one month, pursuant to the salient provisions adumbrated under section 142 (b)of the Act. Any application, filed into court beyond the said period shall not be taken cognizance of, as being barred by time. THErefore, the date of filing of the complaint, in prosecution under section 138 of the Act, assumed signal importance. In the case on hand, apart from the alleged true copy of the complaint that had been annexed in the typed set of papers, Mr. V. Padmanaban, learned counsel appearing for the petitioner, also produced before this court a copy of the complaint served on the petitioner-accused before the court below. A perusal of the said complaint does not at all reveal any date seal of the writ being affixed on it. THE only tangible material available, as relatable to the date of filing of the complaint is reflected as below: "dated at Poonamallee this November 23, 1992" as had been found mentioned in the true copy of the complaint annexed along with the typed set. This court entertaining the plausibility of the complaint not having been filed on the date of its draft and the same being subsequently filed cannot be ruled out of consideration, called for the remarks of the court below, by passing an order dated January 6, 1995, as below: "in the case on hand, an argument that is projected is that the complaint had been filed even before the cause of action arose. A copy of the complaint annexed in the typed set of papers reveals at the foot of it as below: 'dated at Poonamallee this November 23, 1992'.

(2.) COPY of the complaint furnished to the accused had also been produced before this court and the same is also verbatim as the copy of the complaint as annexed in the typed set of papers.