Basavantappa Sangappa Rotti vs Veeranna @ Veerappa

L. Narayana Swamy, J.—The appellant is challenging the order passed by the Judicial Magistrate, First Class, Ron in C.C. No. 86/2001 dated 22.11.2007. The appellant is the complainant who instituted the case against the respondent for the offence punishable u/s 138 of Negotiable Instruments Act. The Court rejected the complaint on the ground of delay in issuing the notice and also filing the compliant. The order of the trial Court has been challenged on the grounds that, since the notice was issued by the Bank on 22.03.1995 and the complaint was given on 07.04.1995, the same is well within the limitation. The respondent-accused issued cheque on 08.10.1994 and it was presented to the bank same day for encashment. The endorsement was issued intimating the appellant that ''account closed''. Since the successive presentation of the cheque is permissible within the validity time of the cheque and accordingly, the cheque was presented on the second time on 21.03.1995 and it was intimated to him that ''account was closed''. Within 30 days as stipulated under sub Clause ''B'' of Section 138 of the Negotiable Instruments Act, 1881, (for short the ''Act''), notice was issued and thereafter complaint was filed. The trial Court committed an error in calculating the limitation from the date of endorsement dated 08.10.1994 and the same is in contravention of the provisions. Hence, he submits that the impugned order passed by the trial Court be set aside.

For the purpose of ascertaining the fact, whether the complainant herein has presented the case as required u/s 138 of the Act, I have gone through the judgment and material placed herein. The cheque is dated 08.10.1994 and it was presented to the bank and on the same day. Intimation was issued to the appellant stating that the account was closed. In view of the fact that closing of the account was intimated to the appellant, that is to say, the cheque itself is invalid and the account on which the cheque was drawn was closed, the successive presentation of the same is not available to the appellant. Sub clause ''B'' of Section 138 of the Act makes it clear that the holder of the cheque makes a demand for the payment of the cheque amount by giving a notice in writing to the drawer of the cheque within 30 days from the receipt of the information. For the purpose of 30 days for issuance of notice is to be calculated with effect from the date of intimation about the closing of the account i.e., dated 08.10.1994. When the appellant has the knowledge of closing of the account, the question of representing the cheque does not arise. This aspect has been discussed elaborately in the judgment in the case of Sri. H. Nanjundappa Vs. Sri. H. Hanumantharayappa, , wherein it has been held that:

The drawer could be given opportunity to make good the funds in the account for honouring the cheque on the second presentation. In case of "Account closed", the question of successive presentation makes no sense because the account itself is not in existence.

In the light of the judgment referred to above and also the fact that the cheque itself has died and no purpose could be served for re-presentation when the respondent himself do not maintain and keep valid the current account for operation. When the appellant himself cannot be called as a holder of the cheque in due course, he might have instituted the case within 30 days for the purpose of sub section ''B'' of Section 138 of the Act. Hence, reasons assigned by the Court below are sound and proper and I am not inclined to interfere with the same.

Therefore, I am not inclined to admit this appeal and accordingly, it is dismissed at that stage itself.