SATHU JANARDHAN Vs. P NAGA VARA PRASAD

JUDGEMENT

(1.) This petition is filed by the accused under Section 482 Cr.P.C. for quashing proceedings in C.C.No. 99 of 2006 on the file of II Additional Chief Metropolitan Magistrate, Vijayawada, relating to offence punishable under Section 138 of the Negotiable Instruments Act.

(2.) The respondent filed private complaint in the lower Court against the petitioner alleging offence punishable under Section 138 of the N.I. Act. It is alleged that the accused borrowed Rs. 75,000/- on 20-5-2005 from the complainant and executed promissory note in his favour promising to repay the said amount with interest at 24% p.a. and that in spite of demands, the accused did not repay the debt and issued cheque dated 10-8-2005 in favour of the complainant for Rs. 68,000/- drawn on State Bank fo Hyderabad, ACC branch, Mancherial towards payment under the pronote. The said cheque was presented by the complainant for encashment and it was dishonoured by State Bank of Hyderabad, ACC branch, Mancherial with a memo of 'funds insufficient'. Thereupon the complainant gave notice dated 26-9-2005 to the accused demanding payment of amount of Rs. 68,000/- covered by the dishonoured cheque. The accused got issued reply notice dated 30-9-2005 putting forward some contentions. At that stage, the complainant did not choose to file complaint. Subsequently, the complainant presented the same cheque for encashment through Karur Vysya Bank Limited. For second time, the cheque was dishonoured for insufficient funds' as per memo dated 21-12-2005 of State Bank of Hyderabad, ACC branch, Mancherial. Thereupon the complainant gave second notice dated 31-12-2005 to the accused informing him about second dishonour and calling upon him to pay amount covered by the cheque. There was no reply from the accused for second notice. Thereafter, the complainant filed private complaint in the lower Court on basis of second dishonour of the cheque. In the complaint, the complainant did not choose to mention about first dishonour. The complainant has only stated about exchange of notices between them prior to second presentation of the cheque for encashment. He did not state in the complaint as to why there was exchange of notices between them prior to second presentation of the cheque through Karur Vysya Bank Limited. But, on perusal of notice dated 26-9-2005, it is evident that the cheque was dishonoured for first time on 29-8-2005 after first presentation and the said notice was given on basis of the said cause of action.

(3.) Counsel for the petitioner contended that the private complaint is not maintainable on basis of second dishonour, hich occurred after exchange of notices between the parties immediately after first dishonour of the cheque. He placed reliance on reported decisions of the Supreme Court and this Court on this aspect. In Sadanandan Bhadran v. Madhavan Sunil Kumra (1) 1998 (2) ALT (Crl.) 289 (SC) = 1998 (2) ALD (Crl.) 529 (SC), it was observed by the Supreme Court: