Criminal Revision Petition No.160 of 2000

31st July, 2001

Petitioner Counsel: Mr. B.N.MURLIDHAR
Respondent Counsel: Mr. R.SHYAMA

Cases Cited:
Sadanandan Bhadran Vs. Madhavan Sunil Kumar , 1998(4) ALL MR 645 (S.C.)=AIR 1998 SC 3043: (1998)6 SCC 514 [Para 3]
Sadanandan Bhadran Vs. Madhavan Sunil Kumar, 1998 ALL MR (Cri) 1613 (S.C.)=AIR 1998 SC 3043: (1998)6 SCC 514 [Para 3]

JUDGMENT

JUDGMENT :- The petitioner filed a complaint under Section 200 of the Cr.P.C. before the learned Magistrate, alleging commission by the respondent of an offence punishable under Section 138of the Negotiable Instruments Act, 1881('Act for short). The learned Magistrate took cognizance, recorded the sworn statement, found sufficient ground to proceed, and directed issuing of process against the respondent-accused for an offence punishable under Section 138 of the Act. That was challenged by the respondent-accused before the learned Sessions Judge, by way of revision,and has set aside the order of the Trial court. Petitioner-complainant has now approached this Court under Section 397 of the Cr.P.C.

2. The only question that arises for consideration in this proceeding is as to whether the complainant was obliged to issue notice of demand under clause (b) of the proviso to Section 138 of the Act on the first occasion of dishonour of the cheque, itself, or whether it is open to him to present the cheque again, and then chose to issue such notice. In the case concerned herein, on the first presentation, the cheque was dishonoured. No notice under clause (b) of the proviso to Section 138 of the Act was issued then. The complainant re-presented the cheque within the validity period, and this time also the cheque was dishonoured. It was then that the statutory notice as per the above said provision was issued and the amount not having been paid in time, complaint came to be filed in time. The learned Sessions Judge has held that. Statutory notice of demand has to be issued within fifteen days from the earliest dishonour. It is on that basis that the learned Sessions Judge has found fault with the complaint filed on the basis of the second dishonour.

3. As per clause (b) of Section 142 of the Act, complaint has to be filed within one month of the date on which the cause of action arises under clause(c) of the proviso to Section 138 of the Act. Clause (C) of the proviso to Section 138 of the Act speaks of failure of the drawer of the cheque to make the payment of the amount covered by the cheque to the payee or as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the notice issued under clause (b) of the proviso to Section 138 of the Act. That means that, on failure of the drawer of the cheque to pay the amount within fifteen days from the date of receipt of the notice issued under clause (b) of the proviso to Section 138 of the Act, that cause of action arises under clause(c) of the said proviso, and within one month of such arising of cause of action that the complaint has to be filed as per the clause (b) of Section 142 of the Act. In Sadanandan Bhadran v. Madhavan Sunil Kumar, AIR 1998 SC3034 : (1998) 6 SCC 514 : [1998(4) ALL MR 645 (S.C.) : 1998 ALL MR (Cri) 1613 (S.C.)], the Supreme Court has said that, without taking pre-emptory action in exercise of his right under Clause (b) of Section 138 of the Act, the payee can go on presenting the cheque so as to enable him to exercise his right at any point of time during the validity of the cheque. But once he gives a notice under clause (b) of the proviso to Section 138 of the Act, he forfeits the right of presenting the cheque all over again for, in case of failure of drawer to pay the money within the stipulated time, the drawer would be liable for the offence and the cause of action for filing the complaint will arise with in the period of one month for filing the complaint being required to be reckoned from the day immediately following the day on which the period of fifteen days from the date of receipt of the notice by the drawer expires.

4. Coming to the facts of the present case, the cheque was first presented on 24.11.1998, and the intimation of its dishonour was received on 26.11.1998. As to what he did then, the complainant states thus in the complaint: "The complainant brought this fact of dishonour of cheque, to the notice of the accused, then the accused pleaded with the complainant that he is in serious financial crisis and asked for three months time to pay the amount covered". It is then that the complainant presented the cheque for the second time on 24.2.1999. Intimation of its dishonour was received on 27.2.1999. Then the statutory notice of demand was issued on 9.3.1999 and on the petitioner's failure to pay the amount within fifteen days from the date of its receipt, complaint has come to be filed. It could thus be seen that issuing of statutory notice under clause (b) of the proviso to Section 138 of the Act is after the second dishonour and not after the first dishonour and it is in consonance with what the Supreme Court has said above so far as computation of time for filing the complaint is concerned. When the cheque is presented within the period of validity, it is only the issuing of notice under clause (b) of the proviso to Section 138 of the Act that takes the matter to the next stage, viz., on the drawer's failure to pay the amount within fifteen days from the date of receipt of the notice under clause (b) of the proviso to Section 138 of the Act that cause of action would arise under clause (c), giving rise to filing of complaint within a month therefrom as per Section 142(b) of the Act. The learned Counsel for the respondent, however, referring to the above extracted portion submits that, even though admittedly in this case there is no written notice of demand under clause (b) of the proviso to Section 138 of the Act after the First dishonour, mere oral intimation as admittedly given from the extracted portion above,would suffice and that, mere oral intimation would still be a notice within the meaning of clause (b) of the proviso to Section 138 of the Act. In my opinion, it has to be a written notice and not an oral notice. The learned counsel for the respondent submits that the wording in clause (b) of the proviso to Section 138 of the Act in this regard is ambiguous, and the benefit should be given to the petitioner-accused. In my opinion, there is no ambiguity. The provision is clear, viz., there has to be a written notice. Mere oral intimation will not suffice and will not be a demand notice within the meaning of clause (b) of the proviso to Section 138 of the Act.

Petition is, therefore, allowed. Impugned order of the learned Sessions Judge is set aside, and that of the learned Magistrate is restored.

Petition allowed.