Arihant Finance (India) Limited vs V. Lakshmi Reddy

R. Mala, J.—This appeal has arisen out of the judgment passed by the XVII Metropolitan Magistrate, Saidapet, Chennai, on 15.02.2001 in

C.C. No. 3947 of 1998, exonerating the respondent/accused from the charges levelled against her u/s 138 of Negotiable Instruments Act and

acquitting the respondent/accused.

Briefly stated, the case of the prosecution is as follows:

The appellant/complainant filed a complaint stating that the respondent herein/accused had borrowed a sum of Rs. 7,35,000/- and he issued a

cheque bearing No. 887236-Ex.P2 dated 21.01.1998, which on being presented by the complainant for encashment returned for ""Funds

Insufficient"", hence, on his request, subsequently it was represented on 11.05.1998, but again, the said cheque returned-Ex.P3 unpaid for the

reason funds ""Not arranged for"" and the same was intimated to the appellant/complainant by the banker vide debit advice-Ex.P4 dated

13.05.1998. So, the appellant/ complainant issued a telegram-Ex.P5 dated 14.05.1998 and sent a notice-Ex.P6 dated 20.05.1998 and the

acknowledgment card dated 23.05.1998 is marked as Ex.P7. Ex.P9 is the statement of accounts of the respondent/accused. After receipt of the

notice dated 20.05.1998, the respondent herein/accused has not paid that amount. Hence, he come forward with the complaint u/s 138 of

Negotiable Instruments Act.

The learned XVII Metropolitan Magistrate had taken the private complaint on file and after examining PWs 1 to 3, Exs.P1 to P10, exonerated

the respondent/accused from the charges levelled against him u/s 138 of Negotiable Instruments Act and acquitted the accused. Against that, the

present appeal has been preferred.

The learned Counsel for the appellant would contend that the trial court came to the conclusion that the notice issued under Ex.P6 dated

20.05.1998 has created only a second cause of action, since, PW1-Sowrirajan, Accountant of appellant/complainant-Arihant Finance has

admitted in his evidence that when for the first time the cheque was returned dishonoured, immediately, a notice was sent, but it was returned. In

such circumstances, the trial court has dismissed the case stating that the cause of action has arisen on the date of issuance of the first notice. But,

the conclusion of the learned XVII Metropolitan Magistrate is erroneous, because, the first notice has not been served on the respondent/accused,

so, on receipt of the second notice by the respondent/accused alone the cause of action has arisen. Here, first notice has not been served on the

respondent/accused. Hence, no cause of action has arisen on the date of issuance of the first notice and therefore, the trial court has committed an

error. To substantiate his case, he relied upon the decision reported in 2001 (1) Crimes 198 (SC) Dalmia Cement Bharath Limited v. Galaxy

Traders & Agencies Limited.

Per contra, the learned Counsel for the respondent would contend that PW1-Sowrirajan, Accountant of appellant/complainant-Arihant Finance,

himself has admitted that since the cheque has been dishonoured on 21.03.1998, immediately, a notice has been issued, so the cause of action

arose on the date of issuance of the first notice. Subsequently, the appellant/complainant represented the cheque into the bank for encashment,

which was again returned dishonoured on 12.05.1998 and after that, he issued a second notice under Ex.P6 and that has been received by the

respondent/accused as per acknowledgment card-Ex.P7. Then only, the appellant/complainant filed a private complaint u/s 138 of Negotiable

Instruments Act. Hence, as soon as the first notice has been issued the cause of action has arisen, which fact was considered by the trial court in a

proper perspective and it came to the correct conclusion. Hence, there is no illegality or infirmity in the judgment passed by the learned XVII

Metropolitan Magistrate and therefore, he prayed for the dismissal of this appeal. To substantiate his case, he relied upon the decision reported

injudgment Sadanandan Bhadran Vs. Madhavan Sunil Kumar, .

On the basis of the complaint given by the appellant/complainant, PWs 1 to 3 were examined and Exs.P1 to P10 were marked. The main

contention raised by the respondent/complainant is that the complaint itself is not maintainable, since, the notice issued under Ex.P6 dated

20.05.1998 has created only a second cause of action.

So, it has to be decided as to, whether the issuance of first notice, which was not received by the respondent/accused has created a cause of

action ?

At this juncture, it is appropriate to consider the decision relied upon by the respondent/accused reported in Sadanandan Bhadran Vs.

Madhavan Sunil Kumar, , wherein the Supreme Court has held as under:

Clause (a) of the proviso to Section 138 did not put any embargo upon the payee to successively present a dishonoured cheque during the period

of its validity. On each presentation of the cheque and its dishonour a fresh right and not cause of action accrues. The payee or holder of the

cheque may, therefore, without taking pre-emptory action in exercise of is right under Clause (b) of Section 138 of the Act, go on presenting the

cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. But, once a notice under Clause (b) of

Section 138 of the Act is ''received by the drawer of the cheque, the layee or the holder of the cheque forfeits his right to again present the cheque

as cause of action has accrued when there was failure to pay the amount within the prescribed period and the period of limitation starts to run

which cannot be stopped on any account. This Court emphasised that ""needless to say the period of one month from (for) filing the complaint will

be reckoned from the date immediatley falling the day on which the period of 15 days from the date of the receipt of the notice by the drawer

expires

In the decision cited supra, it was stated that once a notice under Clause (b) of Section 138 of the Act is ''received by the drawer of the cheque,

the layee or the holder of the cheque forfeits his right to again present the cheque as cause of action has accrued when there was failure to pay the

amount within the prescribed period.

At this juncture, the learned Counsel appearing for the appellant would relied upon the decision reported in 2001 (1) Crimes 198 (SC) Dalmia

Cement (Bharat) Limited v. Galaxy Traders & Agencies Limited, and argued that the cause of action has arisen, once the drawee has received the

notice. But here, admittedly, no notice has been received by him. Hence, no cause of action arose on the date of issuance of first notice. In the

decision cited supra, the Supreme Court has held as under:

In M/s. Sil Import, USA Vs. M/s. Exim Aides Silk Exporters, Bangalore, , the respondents therein was an exporter of finished silk goods and

the appellant company based at USA was an importer. The appellant owned a certain amount towards sale consideration of goods exported to it

by the respondent and issued some cheque in their favour. Two of such cheques were returned dishonoured with reason ""no sufficient funds"". The

respondents sent a notice to the appellant-company by fax on 11.6.1996 and notice by registered post on the next day which was received by the

appellant on 25th June, 1996. The respondents filed a complaint before the Magistrate in respect of the said cheques on 8.8.1996. The appellant

contended that the cause of action having accrued on the expiry of 15 days from the date of notice sent by fax on 26th June, 1996, the limitation

for filing the complaint expired on 27th June, 1996, therefore, the complaint filed on 8.8.1996 could not be taken cognizance of by the trial Court.

Allowing the appeal this Court hed:

The language used in the above section admits of no doubt that the Magistrate is forbidden from taking cognizance of the offence if the complaint

was not filed within one month of the date on which the cause of action arose. Completion of the offence is the immediate forerunner of rising of

cause of action. In other words cause of action would arise soon after completion of the offence,and the period of limitation for filing the complaint

would simultaneously start running.

To circumvent the above hurdle, the respondent submitted that 15 days can be counted only from 25.06.1996, the date when the appellant

received the notice sent by registered post and the cause of action would have arisen only on 11.7.1996. The complaint which was filed on

8.8.1996 is therefore within time, according to the learned Counsel for the respondent.

XXXX

The requirement for sending a notice after the cheque is returned by the bank unpaid is set out in Clauses (b) and (c) of the proviso to Section 138

of the Act. They read thus:

Provided that nothing contained in this section shall apply unless --

a. xxx

b. the payee or the holder in due course of the cheque, as the case may be, makes a demand for the 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; and

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 the receipt of the said notice.

The duty cast on the payee on receipt of information regarding the return of the cheque unpaid is mentioned in Clause (b) of Section 138. Within

15 days he has to make a demand for payment. The mode of making such a demand is also prescribed in the clause, that it should be ''by giving

notice in writing to the drawer of the cheque''. Nowhere it is said that such notice must be sent by registered post or that it should be despatched

through a messenger.

and concluded;

The upshot of the discussion is, on the date when the notice sent by fax reached the drawer of the cheque the period of 15 days (within which he

has to make the payment) has started running and on the expiry of the period the offence is completed unless the amount has been paid in the mean

while. If no complaint was filed within one month therefrom the payee would stand forbidden from launching a prosecution thereafter, due to the

clear interdict contained in Section 142 of the Act.

It is well settled that cause of action for dishonour of cheque to file complaint arises only once after issue of the notice. Another cause of action

would not arise on repeated dishonour on presentation of the same cheque again. Once notice u/s 138(b) of the Act is received by the drawer the

payee forfeits his right to present the cheque again. If dishonour of a cheque has once snowballed into a cause of action, it is not permissible for a

payee to create another cause of action with the same cheque by issuing a second notice on basis of dishonour of the cheque by the Bank being

presented by him for second time. The cause of action for dishonour of cheque arises from the date of receipt of notice demanding payment.

Where the first demand notice issued by the complainant had not been served on the accused and on presentation of the cheque for the second

time the cheque was again dishonoured and then the complainant served notice on the accused for second time, the cause of action for institution

the complaint arose to the complainant only for the first time when the second demand notice was received by the accused and payment was not

made within 15 days thereafter and, as such, it could not be said that by representing the cheque the complainant had revived the cause of action of

instituting the complaint u/s 138 since the complaint is within time.

In the decision reported in Rozy Kukreja Vs. Finance Associates, , it was held as follows:

The complainant has also alleged in the complaint that notice of demand was issued on 23.11.2002 through registered post and through courier

service but it was served through courier service on the accused on 5.12.2002. When the accused did not make payment within 15 days after

service of the notice he had filed the complaint. Therefore, the cause of action for instituting the complaint arose to the complaint only for the first

time when notice of demand was received on 5.12.2002 by the accused and payment was not made within 15 days thereafter. The complaint is

therefore within time and it cannot be said that by representing the cheque the complainant had revived the cause of action of instituting the

complaint u/s 138.

A reading of the above citation would prove that mere issuance of notice of demand is not sufficient. The cause of action arose only on receipt

of notice by the drawer. Here, the first notice has been admittedly not received by the respondent/accused. The second notice alone has been

received by him. Hence, the cause of action has arose only on receipt of the second notice by the respondent/accused. So, the complaint has been

filed well within time. Hence, the cause of action arose only on receipt of second notice. Hence, the complaint u/s 138 of Negotiable Instruments

Act is maintainable.

As per the evidence of PWs 1 to 3, since after issuance of cheque, he has not made arrangement for honouring the cheque, after receipt of

Exs.P6 under P7, he had not repaid the amount, hence, he has committed an offence u/s 138 of Negotiable Instruments Act. So, the appellant

herein/complainant has proved that the respondent herein/accused is guilty u/s 138 of Negotiable Instruments Act.

In fine,

i this Criminal Appeal is allowed.

ii The judgment passed by the trial court is set aside.

iii The respondent/accused is convicted for the offence u/s 138 of Negotiable Instruments Act.

iv The respondent/accused is directed to be present in Court on 26.02.2010 at 10.30 am., regarding question of sentence.

Post the matter on 26.02.2010 for questioning the respondent/accused regarding sentence.