Savitha Enterprises and others vs K. Ravindranath Shetty

M.P. Chinnappa, J.—The brief facts leading to this petition are that the petitioner borrowed a loan of Rs. 5 lakhs from the respondent and in repayment of the said loan amount, the petitioner issued a cheque on May, 15, 1993 for a sum of Rs. 5 lakhs. The said cheque when presented for encashment was returned with an endorsement "exceeds arrangement". Thereafter, the respondent got issued a legal notice on May 27, 1993 under RPAD and certificate of posting to the petitioner which was duly served on him. After receipt of the notice, the petitioner approached the complainant and requested him to present the cheque once again and assured that the bank will honour the cheque. Accordingly, the respondents presented the cheque once again which was dishonoured with an endorsement "exceeds arrangement". Hence, the respondent filed a complaint u/s 200 of the Criminal Procedure Code for the alleged offence u/s 138 of the Negotiable Instruments Act (for short "the Act"). After taking cognizance of the offence, the learned magistrate recorded the sworn statement and directed to issue summons to the petitioner in C.C. No. 235 of 1993 on the file of the I Additional C.J.M., Mangalore, D.K. The said order is questioned by the petitioner u/s 482 of the Criminal Procedure Code.

Heard learned counsel on both sides.

Learned counsel for the petitioner has vehemently argued that the respondent has got issued notice only in so far as the dishonour of the cheque for the first time is concerned. But, admittedly, the respondent has re-presented the same for the second time and the said cheque was dishonoured but the respondent has not issued any notice as contemplated u/s 138 of the Negotiable Instruments Act. He also submitted that for every dishonour of the cheque notice will have to be issued without which the complaint is not maintainable.

This court has held that in a complaint for an offence u/s 138 of the Negotiable Instruments Act, the notice of demand was to be issued to the drawer within 15 days from the date the cheque was last returned for want of sufficient funds. The purpose of issuing notice is to facilitate or to give a chance to the drawer to re-arrange for sufficient funds. If he fails to pay or make arrangement on the expiry of 15 days of receipt of the notice, the offence is deemed to have been committed. In other words the drawer gets a cause of action to launch a criminal prosecution against the drawer. Option is given to the payee or the holder of the cheque either to file a complaint immediately after the expiry of 15 days or he may postpone to file a criminal complaint by re-presenting the cheque to the bank.

However, if the payee or the holder of the cheque in due course files the complaint within 30 days from the date of original cause of action, notwithstanding the fact that the cheque was re-presented during that period, a second notice is not necessary intimating the drawer about the dishonour of the cheque which was re-presented. In the event the complainant at request or otherwise desires to give time to the drawer and the complaint is not filed within 30 days from the date of receipt of the notice, the complainant is deemed to have opted to re-present the cheque and issue a notice and when the last time the cheque is dishonoured and he can, thereafter, file the complaint. In such an event only notice is contemplated and not when the complaint is presented within 30 days from the date of service of notice. If he still feels that an opportunity should be given to the drawee to settle the account and if that is the purpose, nothing prevents him from doing so.

In this case, the petitioners failed to pay the amount due under the cheque. At the request of the drawer the cheque was re-presented which also came to be dishonoured but the respondent filed the complaint within one month from the date of service of notice. Such being the case, the petitioner cannot take advantage of his own wrong on the ground that the cheque was re-presented and the same was dishonoured but the complainant filed the complaint without issuing another notice, etc. The very conduct of the petitioner in making false representation to the respondent to re-present the cheque cannot be used for his benefit on the ground that he was entitled for another notice. So long as the cheque remains unpaid and the payee or the holder in due course is able to establish all the ingredients of the offence and satisfy the other requirements of the provisions contained in sections 138 and 142 of the Negotiable Instruments Act, a complaint will be maintainable in spite of the fact that he has not issued notice on the subsequent re-presentation of the cheque as long as the complaint came to be filed within one month of the notice being served on the drawer.

For the foregoing reasons, I do not find any reasons to interfere with the order passed by the learned magistrate taking cognisance of the offence and also directing to issue notice to the petitioners. Further, it is not a rarest of rare cases calling for interference by this court at this stage u/s 482 of the Criminal Procedure Code. Accordingly, this petition is dismissed.