The main legal point established in the judgment is that the availability of sufficient funds in the drawer's account after the dishonour of the cheque does not absolve the drawer from liability under Section 138 of the Negotiable Instruments Act.

The complainant in S.T. No. 588/93 on the file of the Judicial First Class Magistrate's Court-II, Thrissur is the appellant. The judgment dated 17-12-1993 passed by the lower court finding the accused not guilty and acquitting her and setting her at liberty is under challenge.

2. The appellant filed the complaint against the respondent alleging that the respondent issued a cheque for Rs. 8395/- towards the amount due from her in business transaction with the appellant dated 22-12-1992 and when it was sent for collection the cheque bounced and the respondent did not pay the amount inspite of registered notice dated 2-1-1993 intimating her about the dishonour of the cheque and calling upon her to pay the amount and as such the respondent has committed the offence punishable under section 138 of the Negotiable Instruments Act.

3. The lower court after trial found that the respondent failed to pay the amount due under Ext P1 cheque to the appellant within 15 days of the receipt of the notice intimating about the dishonour of the cheque and as such the appellant has got cause of action against the respondent. After finding that it has no jurisdiction to try the case, the lower court held that the respondent is not liable to be punished by the lower court and accordingly acquitted the respondent.

4. It is in evidence that on receipt of Ext. P7 notice sent on behalf of the appellant to the respondent intimating about the dishonour of the cheque and calling upon her to pay the amount, the respondent has caused to send reply notice Ext. P10 stating that the respondent had already sent a letter dated 30-12-1992 requesting the appellant to present the cheque for encashment only on 12-1-1993 and by that time she will make arrangement for payment and that she has deposited the amount on 12-1-1993 and as such the appellant can re-present the cheque and encash it.

5. The appellant has contended that as the law then stood the appellant was not entitled to re-present the cheque for encashment once the cheque was dishonoured, as by the subsequent presentation he would have lost his right to prosecute the respondent under section 138 of the Negotiable Instruments Act. Therefore, he did not re-present the cheque for encashment as mentioned in Ext. P10 reply notice.

6. Though the law on the point is now changed and the payee or holder in due course of the cheque is entitled to present the cheque for encashment more than once before the expiry of six months from the date of issue of the cheque and on each dishonour of the cheque he gets a fresh cause of action against the drawer of the cheque, as the law then stood the appellant cannot be found fault with for not re-presenting the cheque as stated in Ext. P10, as it would have deprived him of his right to prosecute the respondent under section 138 of the Negotiable Instruments Act.

7. It is true that Ext. P. 4 extract of the ledger pertaining to the account of the respondent maintained in the bank shows that there was sufficient amount to the credit of the respondent to honour Ext. P1 cheque on 12-1-1993. But that fact will not absolve the respondent from her liability to pay the amount as provided under clause (c) of the proviso to Section 138 of the Negotiable Instruments Act, as under that clause the drawer of the cheque is liable to make payment of the amount to the payee or the holder in due course within 15 days of the receipt of notice and the intimation to the payee or the holder in due course by the drawer that sufficient amount is available in the bank to honour the cheque after it was dishonoured, will not absolve him from his liability to pay the amount.

8. In the decision in M. M. Malik v. Prem Kumar Goyal, 1991 Cri LJ 2594 a single Judge of the Punjab and Haryana High Court has observed as follows :

"8. Dishonouring of the cheque was only a part of cause of action and the offence was completed only when the petitioner-Company failed to discharge its liability to the credit