P VISWANATHAN ALIAS VISU Vs. S CHANDRA SEKARAN

JUDGEMENT

(1.) THE present action is one initiated under section H 482 of the Criminal Procedure Code, 1973, to quash the proceedings in C. C, No. 12 of 1993 on the file of the judicial Magistrate No. 11, Nagercoil. THE foundational facts giving rise to the present action may briefly be stated thus: (a) One P. Viswanathan alias Visu (petitioner-accused-drawer) issued a cheque dated October 12, 1992 , in favour of one S. Chandrasekaran (respondent-complainant) in discharge of a prior obligation. THE cheque when presented for realisation by the complainant through his bankers, Canara Bank, Nagercoil, on October 12, 1992, had been dishonoured on the same day due to insufficiency of funds in the account of the petitioner accused-drawer. THE matter of dishonour was informed to the petitioner accused-drawer, who, in turn, again requested the respondent-complainant to present the cheque again for encashment and he would arrange sufficiency of funds in his accounts for honouring the cheque. (b) On a request so made by the petitioner-accused drawer, the cheque was again presented for encashment by the respondent-complainant through his bankers, Canara Bank, Nagercoil, on November 6, 1992. THE said cheque was again dishonoured on November 18, 1992, and the same had been intimated through his bankers by way of an intimation dated November 19, 1992. (c) On November 27, 1992, the respondent-complainant holder in due course, sent a registered notice through his lawyer to the petitioner accused drawer, requiring him to comply with the demand made therein within fifteen days of the receipt of the notice. THE petitioner-accused drawer received the said notice on November 30, 1992. To the said notice, he was stated to have issued a reply notice levelling false and untenable allegations and contentions without even complying with the demand. (d) Consequently, the respondent-complainant launched a prosecution as against the petitioner-accused for an offence under section 138 of the Negotiable Instruments Act, 1881 (Act 26 of 1881) (for short "the Act"), which was taken on file in the aforesaid calendar case. On receipt of process, the petitioner-accused, as earlier stated, resorted to the present action. He has also filed two criminal miscellaneous petitions, namely, Criminal Miscellaneous Petitions Nos. 1083 and 1084 of 1995, the former for stay of all further proceedings and the latter for dispensing with the personal appearance in the court below, pending disposal of the main criminal original petition before this court. Mr. K. Sridharan, learned counsel representing Mr. P. Senthur Pandian, would press into service the following points for consideration : (i) THE complaint under section 138 of the Negotiable instruments Act can be resorted to only once, on the original cause of action of dis honour of the cheque and it is not permissible to institute successively fresh complaints on successive causes of action during the period of the validity of the cheque ; (ii) THE particulars regarding the date of dishonour of the cheque had not been specifically mentioned in the statutory notice issued under clause (c) of section 138 of the Act ; and (iii) THEre is no specific prayer in the complaint for the punishment of the petitioner-accused, in case the offence alleged against him is proved. To all these submissions of learned counsel, appearing for the petitioner, I am unable to affix my seal of approval, on the facts and in the circumstances of the case. In projection of the first submission, the said learned counsel relied upon a Division Bench decision of the Kerala High Court in the case of Kumaresan (N. C.) v. Ameerappa 1992 (74) CC 848, 1 Crimes 23, 1991 (1)KLT 893, 1991 (3) RCR 172 and of the Punjab and Haryana High court in the case of K. P. V Textiles v. Malook Chand Naresh Chand 1994 (79) CC 125, 3 Crimes 594, 1992 (2) RCR 425. THE said learned counsel, while placing reliance on those implicit decisions, however omitted to refer to a decision of this court available, on such a submission, which is getting reflected in the case of sivakumar v. Santha Kumari [1991] 1 LW Crl. 481. In the decision of this court cited supra, it has been held that failure to file prosecution on the dishonour of a cheque on the first occasion is not a bar for initiation of a prosecution subsequently, and 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. On the face of the decision of this court, the Division bench decision of the Kerala High Court and a single judge decision of the punjab and Haryana High Court, are not binding. In this view of the matter, the first submission, as urged by learned counsel for the petitioner, bristles down to nothing. A perusal of the complaint reveals that the respondent-complainant received a notice of intimation from the bank dated november 19, 1992, informing him that the cheque had been dishonoured for insufficiency of funds. What is further stated in the complaint is that on november 27, 1992, the respondent-complainant sent a registered notice to the petitioner-accused requiring him to comply with the demand within a period of 15 days from the date of receipt of the said notice. From this, it is crystal clear that the notice had been issued within a period of 15 days from the date of the receipt of the intimation from the bank, as required by section 138 (b)of the Act. Further, in spite of receipt of the notice so issued, requiring his compliance, within 15 days from the date of receipt of the notice the demand had not been complied with and prosecution had been initiated after the expiry of 15 days from the date of receipt of the notice and within a period of one month thereafter. In such a state of affairs, the second submission of learned counsel for the petitioner is liable to be rejected as of no substance and is accordingly rejected. THE relevant fact, narrated at paragraph 4 of the complaint, reads as below : "the offence committed by the respondent is punishable under section 138 of the Negotiable Instruments Act as amended by the Act 66 of 1988 and is liable to, be punished. " * On the face of such a specific allegation, to say that there is no prayer for the punishment of the petitioner-accused for the offence under section 138 of the Act, in case an offence is made out against him, cannot at all be acceded to. This submission is also liable to be rejected and the same is accordingly rejected. For the above reasons, the criminal original petition deserves dismissal and the same is accordingly dismissed even at the admission stage. Consequently, both the criminal miscellaneous petitions are dismissed. .