D. Sreedevi, J. 1. This Crl. M.C. is filed praying to quash Annexure-I complaint in C.C.No. 638 of 1996 on the file of the Chief Judicial Magistrate, Ernakulam and to direct the respondent to accept the demand-drafts Annexures-IV and V and to compound the offence and settle the case and also to stay the proceedings in C.C.No. 638 of 1996 mentioned above.
2. The second petitioner is the proprietor of M/s. Abraham Chacko and Company and represents the first petitioner. The first respondent filed a complaint before the Chief Judicial Magistrate, Ernakulam, alleging offence punishable Under Section 138 of the Negotiable Instruments Act against the petitioners. The learned Magistrate has taken cognizance of the offence and registered the case as C.C.No. 638 of 1996. Annexure-I is the copy of the complaint. The allegation in the complaint is that on 1 -8-1995 the second petitioner came to the first respondent's office at Ernakulam and purchased materials and delivered cheque No. 738948 drawn on Federal Bank, Thirumangalam Branch, Madras for a sum of Rs. 7,71,152/- towards cost of materials purchased by him on different dates. The first respondent presented the cheque on 12-8-1995 through his Bank at Ernakulam. The cheque was returned with an endorsement "insufficiency of funds". The complainant issued a notice to the petitioner, to which a reply was sent, requesting the complainant to present the cheque again with intimation to the second .petitioner. Accordingly, he had presented the cheque on 14-12-1995, but the same was also returned without payment. The first respondent issued notice on 3-1-1996 to the petitioner. But the said notice was returned with an endorsement "always absent". The petitioners would allege that they have not received any notice alleged to have been issued by the first respondent. During January, 1996 the second petitioner was away in connection with his business. He came to know of Annexure-I complaint only recently. On 4-10-1996, the second petitioner issued a cheque for Rs. 3,00,000/-towards the amount due, as per the oral agreement between the parties. Annexure-II is the copy of the letter forwarding the cheque. The second petitioner agreed to pay the balance amount of Rs. 4,71,152/-on or before 30-6-1998. Annexure-IV is the draft whereby Rs. 2,00,000/- was paid. Annexure-V is another demand draft for Rs. 2,71,152/-. Thus the entire amount has been paid of before they pursued the criminal case. The respondent deviated from the compromise. The second petitioner has performed his part of the contract. Since the transaction is over and no amount is due, the petitioner prays that Annexure-I complaint has to be quashed.
3. The learned counsel for the petitioner Mr. T.G. Rajendran submitted that the complaint was filed without serving notice under Sub-section (2) of Section 138 of the Negotiable Instruments Act.
4. Admittedly, the cheque issued by the petitioner was presented to the Bank and the same was dishonoured. Immediately, a notice of dishonour was issued to the respondent. The petitioner asked the respondent to present the cheque once again. Accordingly, the cheque was re-presented, but the same was also dishonoured. The learned counsel for the petitioner submitted that the complaint is not maintainable as the respondent has not filed the complaint within 30 days from the date of receipt of notice, as is held by the Apex Court in Sadanandan Bhadran v. Madhavan Sunil Kumar (1998) 2 Ker LT 765 : 1998 Cri LJ 4066. The Supreme Court held, that the right to present the cheque arises only once when the first notice is given. It reads:-
If we were to proceed on the basis of the generic meaning of the term 'cause of action' certainly each of the above facts would constitute a part of the cause of action but then it is significant to note that Clause (b) Section 142 gives it a restrictive meaning, in that, it refers to only one fact which will give rise to the cause of action and that is the failure to make the payment within 15 days from the date of receipt of the notice. The reason behind giving such a restrictive meaning is not far to seek. Consequent upon the failure of the drawer to pay the money within the period of 15 days as envisaged under Clause (c) of the proviso to Section 138, the liability of the drawer for being prosecuted for the offence he has committed arises, and the period of one month for filing the complaint under Section 142 is to be reckoned accordingly. The combined reading of the above two sections of the Act leaves no room for doubt that cause of action within the meaning of Section 142(C) arises - and can arise-only once.
The learned counsel for the respondent submitted that the said decision is not applicable to the case in hand as at the instance of the petitioner the cheque was presented again and the same was returned dishonoured. So the cause of action according to him will arise only when the second notice is issued. The second notice did not reach him and hence it is submitted that the respondent cannot sustain an action against the petitioner, on the basis of the second notice. As the second notice has not reached the petitioner, it has to be found that the only notice issued to the petitioner is the first notice, and cause of action has arisen on the first notice. No complaint has been filed within 30 days from the date of the first notice. Therefore, the complaint is beyond time.
5. It is submitted that the respondent has filed a civil suit against the petitioner and got a decree and hence he can execute the decree. It is also submitted that as per the compromise between the parties, the respondent .has received Rupees 3,00,000/- towards part of the amount due and the balance, was sent by demand draft. The respondent has not accepted the demand draft as he wanted to prosecute the petitioner before Court. Admittedly, the respondent has received Rs. 3,00,000/-. That shows that there was a compromise between the parties as alleged by the petitioner and as per the terms of the compromise the respondent has received Rs. 3,00,000/-. So there cannot be any wilful intention to cheat the respondent. In view of my above discussion. I find that the complaint is not maintainable in law and hence the complaint has to be quashed.
In the result, the Crl. M.C. is allowed and the complaint, C.C.No. 638 of 1996 on the file of the Chief Judicial Magistrate's Court, Ernakulam is quashed.