Sivasankar vs Santhakumari

Janarthanam, J.—This revision is directed against the order of the learned VII Metropolitan Magistrate, George Town, Madras, dated July

30, 1990, dismissing the complaint in C.C. No. 2640 of 1990, preferred by Sivasankar, the complainant/petitioner, against Tmt. Santhakumari, the

accused/respondent, for an alleged offence u/s 138 of the Negotiable Instruments Act. Tmt. Santhakumari, the accused/respondent, issued cheque

No. 371191, dated September 11, 1989, for Rs. 90,000 drawn on Indian Bank, Royapuram branch, Madras, in favour of the

complainant/petitioner towards his share of contribution in the settlement of accounts of the joint business. The cheque when presented by the

petitioner for encashment bounced on December 9, 1989. Thereafter, he issued a legal notice on December 23, 1989, requiring the respondent to

make arrangement for the honour of the cheque within fifteen days from the date of receipt of the notice. The respondent is stated to have met the

petitioner and requested him not to initiate prosecution, promising him to make the payment within a short time. The respondent, as promised by

her, did not honour her commitment and the petitioner, therefore, met her personally and demanded payment. The respondent is stated to have

informed the petitioner that she had already arranged with her bankers and requested him to present the cheque once again for collection. When

the cheque was presented again, it was returned on February 15, 1990, with an endorsement, ""not arranged for"". The petitioner issued a legal

notice dated February 21, 1990, demanding the responded to pay him the amount within 15 days of the receipt of the notice. Since the notice had

not been complied with, the petitioner was constrained to file the aforesaid complaint against the respondent. The learned Magistrate, on a

consideration of the materials on record, dismissed the complaint, u/s 203 of the Criminal Procedure Code, even without issuing any process to the

respondent. Hence, the present revision.

Learned counsel appearing for the revision petitioner/complainant would contend that the Magistrate erred in dismissing the complaint and made

the following two legal submissions :

(i) The learned Magistrate dismissed the complaint without any issuance of process to the respondent u/s 203 of the Criminal Procedure Code,

and the revision if admitted, has to be disposed of even without issuance of notice to the respondent.

(ii) The finding of the Magistrate that the non-initiation of the prosecution by the petitioner on the dishonour of the cheque for the first time on

December 9, 1989, after issuance of the legal notice dated December 23, 1989, is fatal to the prosecution case, is unsustainable in law.

Both the legal submissions do deserve commendation and acceptance at the hands of this court. This is a case of dismissal of the complaint and

not a case of discharge of an accused after taking the complaint on file. The difference and distinction lie this way. In the case of dismissal of a

complaint, the person accused of the offence does not at all derive the status of an accused till the process is issued. On the other hand, in the case

of discharge, the complaint is taken on file, process is issued, and person accused of the offence makes his appearance before court and derives

the status of an accused. Once the person accused of an offence derives the status of an accused, he has to be given the right of audience in

revision proceedings, challenging the order of discharge. In the case of dismissal of a complaint, the person accused of the offence need not at all

be given the right of audience in revisional proceedings, challenging the dismissal order. To this effect, learned counsel rightly placed reliance on the

decision in Somu v. State [1985] Crl. LJ 1309 wherein the learned judge observed in paragraph 2 as follows :

.... It is common ground that the criminal complaint preferred by the second respondent was dismissed by the trial court u/s 203 of the Criminal

Procedure Code. In other words, till the process is issued by the trial court, the petitioners do not get the status of the accused. Consequently, they

have no right of audience before the revisional authority. The proviso u/s 398 of the Criminal Procedure Code, merely states that no court shall

make any direction under this section for enquiry into the case of any person who has been discharged unless such person has had an opportunity

of showing cause. But that contingency does not arise in this case as this is not a case of discharge by the trial court.

The dismissal of the complaint by the learned Magistrate for the non-initiation of the prosecution on arising of the first cause of action, viz., the

dishonour of the cheque for the first time on December 9, 1989, does not all reflect the true legal position as adumbrated under sections 138 to

142 of the aforesaid Act. What is contemplated in those proceedings is :

(i) The cheque has to be presented for encashment within its period of validity.

(ii) The cheque has to be 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 made with that bank.

(iii) A legal notice has to be given by the holder of the cheque to the drawer to comply with the demand made in the notice for repayment within 15

days of the date of receipt of the notice.

(iv) If compliance is not made, the prosecution has to be launched within one month, after the expiry of 15 days from the date of receipt of the

notice. There is no specific provision at all that the complaint or the first time after the issuance of the statutory notice. Such being the case,

successive dishonour of the cheque on different occasions, of course, presented within its period of validity, will have to be construed as

constituting separate causes of action for the initiation of a prosecution. When the cheque in the instant case bounced on December 9, 1989, the

petitioner did not keep quiet and, as required by law, issued a statutory notice as adverted to earlier, on December 23, 1989. On receipt of the

notice, the respondent appears to have requested the petitioner not to indulge in hurly-burly prosecution and to give her some time for making

payment. Accordingly, he waited for payment in vain and again represented the cheque on February 15, 1990, well within the period of validity. A

further cause of action having arisen, in the sense of dishonour for a second time of the same cheque, he issued the statutory notice on February

21, 1990, and launched a prosecution, within the period of time prescribed, in the sense of filing the complaint within 30 days after the expiry of 15

days from the date of receipt of the said notice.

In these circumstances, the dismissal of the complaint by the learned Magistrate is not sustainable, and the order is set aside. The revision is

allowed and the learned Magistrate is directed to take the complaint on file and dispose of it according to law.