C.K. Swarnalatha vs K. Chandra Mohanan

K.G. Balakrishnan, J.—This is an appeal filed by the complainant in C. C. No. 698 of 1991 on the file of the J. F. C. M.-1, Kannur, against the acquittal of the respondent. The complaint was filed u/s 138 of the Negotiable Instruments Act, 1881, and it was alleged that the respondent had drawn three cheques in favour of the complainant and when they were presented for payment, they were dishonoured and thus the respondent committed the offence under the Act. When this appeal came up for hearing before the learned single judge, the question arose as to whether a single complaint could be filed in respect of three cheques. The learned single judge disagreed with the view expressed in Crl. R. P. No. 734 of 1994 and was pleased to refer the matter to a Division Bench.

We heard the appellant''s counsel and also counsel for the respondent. The respondent herein was acquitted on the ground that the complaint was barred by time. The Magistrate held that as per Section 138(c), the complaint should have been filed within 15 days of the receipt, of the notice by the accused.

At the outset we may state that, the view taken by the Magistrate is incorrect and contrary to the provisions of law. One of the conditions to be fulfilled for filing a complaint u/s 138 of the Act is, that, the cheque should 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. When any cheque presented for payment is dishonoured either because the amount of money standing to the credit of that account is insufficient to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement with the bank, the payee or holder in due course of the cheque shall make a demand for payment of the said amount of money, by giving a notice in writing to the drawer of the cheque. The notice shall be sent within 15 days of the receipt of the information by the payee or holder in due course from the bank regarding the return of the cheque as unpaid. On receipt of such notice, if the drawer of the cheque fails to make payment of the said money to the payee or holder in due course within 15 days, a cause of action will arise in favour of the payee or holder in due course for filing a complaint u/s 138. Section 142(b) of the Act says that such a complaint should be filed within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. The payee or holder in due course gets a further period of one month for filing the complaint from the date on which the cause of action arises. Here the Magistrate held that, the complaint should be filed within a period of 15 days of the receipt of notice by the accused/respondent. The view taken by the Magistrate is not correct.

Here the complainant, i.e., the payee of the cheque sent notice to the respondent on July 27, 1991, informing the drawer that the cheques were presented and that they were dishonoured and that the amount should be paid by the respondent. In the complaint, it is not disclosed as to when this notice was received by the respondent. However, the respondent had chosen to send a reply on August 6, 1991, denying his liability. Therefore, it could be assumed that the notice sent by the complainant must have been received by the respondent prior to August 6, 1991. We will assume that the notice was received on August 6, 1991, and the respondent had a further period of 15 days time to effect payment. But no amount was paid within that date and a cause of action arose in favour of the complainant on August 21, 1991. The complainant has got a further period of one month to file the complaint. The complaint was filed on September 3, 1991, as we see from the endorsement made in the complaint. But strangely enough the Magistrate had taken the sworn statement of the complainant on September 23, 1991. When a complaint is filed before a Magistrate, the sworn statement of the complainant is to be taken immediately or within a reasonable time, as the Magistrate has to decide whether cognizance is to be taken or not. The adjournment of the case for an unduly long period is certainly a bad practice not to be followed by trial Magistrates. As the complaint was filed on September 3, 1991, it is within the period of one month of the date on which the cause of action arose. The acquittal of the respondent on that ground is not sustainable.

The next question that is to be considered is whether the cases in respect of three cheques could be tried jointly, in view of Section 219 of the Criminal Procedure Code. The three cheques were drawn on different dates and they were for different amounts. But they were presented together for payment and they were dishonoured and a single notice was sent by the complainant to the drawer. The general rule is that for every distinct offence of which a person is accused, there shall be a separate charge and every such charge shall be tried separately, but the accused is ''given a privilege and he can submit an application in writing expressing his desire that all charges framed against him may be tried jointly. Section 219 of the Code of Criminal Procedure, 1973, is an exception to the general rule and it says that, (1) when a person is accused of more offences than one of the same kind committed within the space of 12 months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three. Sub-clause (2) of Section 219 says that for the purpose of Section 219(1), offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code or of any special or local laws. As regards the offences coming u/s 138 of the Negotiable Instruments Act, punishment prescribed is 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.

Counsel for the respondent argued that the fines to be imposed on the accused vary depending upon the amount for which the cheque is drawn. It is submitted that in the instant case, the cheque drawn on April 15, 1991, was for Rs. 20,000 and the cheques drawn on May 15, 1991, and June 15, 1991, were respectively for Rs. 40,000 and Rs. 60,000. Therefore, it is contended that the fine, if any, to be imposed on the respondent would vary, and hence, it cannot be said that for each case there is the same amount of punishment as envisaged u/s 219(2) of the Code. Our attention was also drawn to a decision of the learned single judge in Crl. R. P. No. 734 of 1992. In that case, the learned single judge was pleased to observe that, the punishment for offence u/s 138 is imprisonment for a term which may extend to one year and or with fine which may extend to twice the amount of the cheque or with both and therefore, the punishment which could be imposed on the accused are different because the amounts of cheques issued are for different amounts and hence Section 219 stands in the way of joint trial. A similar view has been taken by another learned single judge in Crl. A. No. 142 of 1992. A contrary view is taken by another learned single judge in Crl. R. P. No. 814 of 1992.

It cannot be assumed that merely because u/s 138 of the Act, a guideline is given regarding the quantum of fine to be imposed on the accused, there are different offences. The main punishment prescribed is imprisonment which may extend to a period of one year. As regards fine, it is stated that the quantum may extend to twice the amount of the cheque. It is important to note that the fine is not a compulsory punishment and only the maximum amount is prescribed. These guidelines do not alter the nature of the punishment. In the matter of sentence, the Magistrate is given a discretionary power depending upon the amount for which the cheque is drawn. This discretionary power in the matter of sentence does not alter the nature of the offence. So, even if the cheques had been issued for different amounts, if other conditions laid down in Section 219(2) are satisfied, the cases in respect of three cheques could be tried jointly. Moreover, this is a procedural law and the main question to be considered is whether the accused is seriously prejudiced by that. If the present procedure is adopted, the accused is not likely to be prejudiced and it will avoid multiplicity of cases. With due respect, we hold that, the view expressed in Crl. R. P. No. 734 of 1992 and Crl. A. No. 142 of 1992 does not lay down the correct law and we agree with the view taken in Crl. R. P. No. 814 of 1992.

In the result, we set aside the acquittal of the accused and remand the case to the trial court and direct the Magistrate to dispose of the case afresh. Parties are at liberty to adduce fresh evidence, if any.