Complaint filed for bouncing of cheque held maintainable.

Legality of the correctness of taking cognizance and issuing summons to the revision-petitioner on November 30, 1994 by the Munsif and J.M.F.C, Hadagali, District of Bellary in a criminal case instituted on a private complaint by second respondent for an offence under Sec.138 of the Negotiable Instruments Act is challenged in this revision petition.

The revision-petitioner is the accused, second respondent is the complainant and the first respondent is the State of Karnataka, Hereinafter I refer to the parties as they are described in the private complaint for the purpose of convenience.

2. Few facts relevant for the disposal of this revision may be stated thus:

It appears the accused had taken hand loan of Rs. 30,000 from the complainant for his contract work on October 4, 1993 promising him to repay on demand. When the complainant demanded for repayment of the amount, accused issued a cheque bearing No. 124453, dated January 18,1944 in favour of the complainant for a sum of Rs.30,000 drawn on Bellary District Central Co-operative Bank, Harapanahalli Branch. The complainant presented the cheque for encashment and on April 19, 1994, the cheque was bounced with an endorsement “refer to drawer”. Then again the complainant presented the cheque on 15.7.1994 and it was bounced on the same day with an endorsement “refer to drawer”. Therefore, the complainant sent a notice dated July 16, 1994 by registered post acknowledgement due requesting the accused to make payment within 15 days and that was served on the accused on July 19, 1994. The accused did not either reply or made payment within 15 days and therefore on September 2, 1994 complaint was filed in the court for an offence under Sec.138 of the Negotiable Instruments Act. The learned Magistrate took cognizance of the offence, recorded the sworn statement of the complainant, marked the documents Exs.P-1 to P-4 and by the impugned order dated November 30, 1994 issued summons to the accused for appearance by January 4, 1995. This order is under challenge.

3. Learned counsel for the revision petitioner, second respondent and the learned High Court Government Pleader for the respondent 1-State present.

4. The learned counsel for the accused contended that the sworn statement is recorded by the court with the assistance of the advocate and therefore the proceedings vitiates. Secondly he contended that at the first instance on January 18, 1994 complainant presented the cheque for encashment through his banker and that was returned to him on January 21, 1994 on the ground that there is insufficiency of funds. Therefore, the complainant issued a notice dated January 29, 1994 asking the accused to make payment within 15 days, that he sent a reply notice dated March 5, 1994 contending inter alia that his cheque book was stolen and the cheque in question is forged and he is not liable to make any payment. The complainant having kept quite, presented the cheque for second time in the month of July 1994 and that being returned, sent a notice dated July 16, 1994 and thereafter he made this complaint. Since the complainant did not make any complaint within one month after the expiry of the period of 15 days after the dishonour for the first time, the cause of action accrued stood vanished and therefore the complaint filed after the cheque was dishonoured for the second time is not maintainable in law. In support of his arguments, he invited my attention to the decisions of the Kerala High Court in K. Chellakkannu Nadar v. Sri Chenkal M.R. Simon K. Chellakkannu Nadar v. Sri Chenkal M.R. Simon, 1994 Crl.L.J. 3515 and the unreported decision of a learned single Judge of this Court in ( D. Puttaswamy V. N.R. Ramakrishna, Crl.R.P.No.146 of 1995 dated 3.4.1995).

The learned counsel for the complainant argued that a cheque can be presented any number of times or within a period of six months within the date of its validity whichever is earlier in view of Sec.138(a) of the Negotiable Instruments Act a