S. Kiran vs L.C. Corporation

Partap Singh, J.—The accused in C.C. 9502/89 on the file of VIII Metropolitan Magistrate, George Town, Madras has filed this petition u/s 482, Cr.P.C. praying to call for the records in the above case and quash the same.

Short facts are: The respondent has filed a private complaint against the petitioner for offence u/s 138 Negotiable Instruments Act (which I shall hereinafter refer to as ''the Act''). The allegations in it are briefly as follows:

The complainant sold and delivered goods to the accused during October to December 1988. After giving credit to the various part payments made by the accused, a sum of Rs. 59,363.16 and interest was found due. In respect of the debt, the accused issued five cheques totalling to Rs. 60,684.16. When the said cheques were presented for encashment, they were returned dishonoured and thereafter once again at the request and the assurance given by the accused, the complainant presented it for encashment. Then again, the cheques were returned with remarks "refer to drawer". The complainant received the intimation of the return on 5.10.89 and 13.10.89. The complainant issued lawyer''s notice on 16.10.89 to the accused, calling upon her to pay the amount within 15 days from the date of receipt of the notice. The accused knowingly and purposely did not receive the notice by locking the premises so as to avoid receipt of the notice. The amount due was neither paid. Hence the complaint.

Mr. R.P. Suryaprakasam, the learned Counsel appearing for the petitioner, would submit that,

i) The cheque were issued as early as in 1989, but they were post-dated and presented beyond six months from the date of issuance of cheques.

ii) The petitioner was adjudged as an insolvent in I.P. 69/89 and hence she cannot be protested for offence u/s 138 of the Act.

iii) the statutory notice issued prior to the filing of the complaint had called upon the accused to pay not only the sums represented by the cheques but also more amount and hence it is invalid.

iv) There were no allegation in the complaint that the cheques were returned for the insufficiency of funds.

v) Five cheques were involved in this case and a single complaint cannot be filed for more than three cheques, since dishonour of each cheques would result in one offence.

I have heard Mr. Udairaj Golecha, the learned Counsel appearing for the respondents on the above aspects and I have clearly considered the same.

I shall consider the submission in seriatim. Regarding the first submission viz., that the cheques were issued in February 1989, but they were presented for encashment only in September 1989, which was beyond the period of six months from the date of issuance of the cheque and hence Clause (a) of the provision to Section 138 of the Act has not been complied with and the complaint was infirm. Mr. Udairaj Golecha, would submit that the date which the cheque bears is the material date and six months is to be calculated from the date. He relied upon Anil Kumar Sawhney Vs. Gulshan Rai, . In this case, the Apex Court had considered the question as to what is the date from which the period of six months, as contemplated u/s 138 of the Act is to be reckoned. After considering the judgment of this Court in Babu Xavier v. Lal Chand Munoth 1990 TNJL (Crl.) 121 and Major K. Seth v. Fernandez 1991 (2) KLT 65, the Apex Court had over ruled the decision of this Court in Babu Xavier v. Lal Chand Munoth 1990 TNLJ (Cri.) 121 and had held that the period of six months shall be calculated from the date which the cheque bears. It is only then, the post-dated cheque becomes a ''cheque'', with effect from the date shown on the face of the said cheque, the provisions of Section 138come into play. The net result is that a post-dated cheque remains a bill of exchange till the date written on it. With effect from the date shown on the face of the said cheque, it become a ''cheque'' under the Act and the provisions of Section 138(a) would squarely be attracted." In view of the ruling of the Apex Court, the first submission fails.

Regarding the second submission, I am clear that because the drawer of the cheque is an insolvent, it would not absolve the accused from offence u/s 138 of the Act. So the second submission also fails.

Regarding the third submission, I have to only say that because some more amount is claimed in the notice apart from the amount which the cheque bears, that would be a superfluous one but it will not invalidate the notice. If the amount mentioned in the cheque has been demanded in the notice, that would suffice and satisfy the requirements of Clause (b) of the proviso to Section 138 of the Act.

Regarding the fourth submission, it is squarely met by the allegation made in the complaint, wherein it is stated that the amounts available in the Bank were not sufficient to honour the cheque. So the fourth submission also falls to the ground.

Regarding the fifth ground viz. that five cheques were involved in this case and that a single complaint cannot be filed for more than three cheques, Justice Arunachalam had occasion to consider such a contention in Cr. O.P. 8731,677 of 1992 and other cases, in which a ground was taken that more than three instances had been clubbed together in a single prosecution, which is contrary to the mandate u/s 217 of Code of Criminal Procedure. While answering that point, the learned Judge has pointed out that there is a patent violation of provisions of Section 219 of the Code of Criminal Procedure in that more than three transactions within a year form part of this prosecution. The learned Judge proceeds further and has laid as follows:

On that ground, the impugned prosecution cannot be quashed. However, the respondent will have to choose on which of these five cheques, he would have the prosecution maintained. That shall be stated before the concerned Magistrate. Subject to this limited observation, on the second ground, this petition, shall stand dismissed.

Thus, the learned Judge had rejected this submission while that was projected for dismissal of the complaint at the threshold. With respect, I am in total agreement with the view expressed by Justice Arunachalam.

Since none of the submission urged for allowing this petition finds acceptance with me, the inevitable result is that this petition is to be dismissed and shall stand dismissed.