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KERALA HIGH COURT
Thulasidas, J.
Ravindranathan - Petitioner
versus
Hussain - Respondent
Cr. Revision Petition No. 659 of 1991
Decided on 27.11.1991
Counsel for the parties:
For the Petitioner: Mr. V. Amarnath.
For the Respondent: Mr. N. Ratheesh.
IMPORTANT POINT
The Negotiable Instruments Act does not compel complainant to issue demand notice immediately upon dishonour of cheque as there can be representation of the cheque and the cause of action for the complaint would arise only when pursuant to the dishonour, notice was issued and there was failure to pay the amount.
Headnote:Negotiable Instruments Act, 1881- Section 138 - Cheque issued by respondent was dishonoured - It was represented and again it wad dishonoured - Written demand notice then issued and on failure of respondent to pay the amount that complaint filed. Order of trial magistrate dismissing complaint on the ground that no written demand notice was issued on the dishonour of cheque on first occasion is unsustainable. (Paras 3 & 4)
Result: Petition allowed.
Thulasidas, J. - This revision is directed against the order on M.P. No. 2253 of 1991 passed by the Judicial Magistrate of the First Class. Kochi.
2. A complaint was filed by the petitioner against the respondent alleging that he committed an offence punishable under Section 138 of Act 66 of 1988. The court dismissed the complaint finding, that-
"the complainant did not send a notice in writing as required. Thus he failed to observe one of the requirements placed under clause (b) of Section 138 read with Section 142(b) of N.I. Act".
3. In my view, the impugned order is unsustainable. The Magistrate has misunderstood the relevant legal provisions. It is not in dispute that the respondent issued a cheque for Rs. 8,000/-. It was presented on 1.4.1991 and was dishonoured on the next day. It was represented on 9.5.1991 and again it was dishonoured. Thereupon, the petitioner sent a notice to the respondent on 14.5.1991, which was accepted by him on 27.5.1991. There was no payment as demanded and therefore the complaint was laid.
4. The Magistrate observed that the petitioner should have issued a notice within 15 days of dishonour of the cheque and if he has failed to do so, his remedy is lost. This is a proposition unwarranted by law. The Act does not compel the petitioner to issue a notice immediately upon dishonour. Subject to the outer limit prescribed. There can be representation of the cheque and the cause of the action for the complaint would arise only when pursuant to the dishonour, notice was issued and there was refusal/failure to pay. The decisions of this court reported in 1991 (1) K.L. T. 5951 and 1991 (1) K.L.T. 8932 apply to this case as well.
5. The impugned order is set aside. The Magistrate is directed to restore the complaint to his file for disposal according to law.
The Crl. M.C. is accordingly allowed.
Petition allowed.
1. 1991 (1) K.L.T. 595.
2. 1991 (1) K.L.T. 893.
