The failure to make payment within the statutory time limit provided under Section 138 of the Negotiable Instruments Act gives rise to the cause of action, and the probative value of a telegram as a statutory notice requires confirmation and lacks authenticity as an unsigned communication.

The instant appeal is filed against the judgment passed by the learned XVII Metropolitan Magistrate, Saidapet, Madras in C.C.No. 3774/91, which arose out of a private complaint preferred by the appellant against the respondent for alleged commission of offence under Section 138 of Negotiable Instruments Act.

2. The facts briefly stated as under:

According to the appellant, the respondent borrowed Rs. 50,000/- from the appellant on 16-5-1990 and executed Ex.P-1, Promissory Note agreeing to repay the said amount with interest to the appellant. Thereafter, the respondent herein issued a cheque bearing No. 832793, dated 25-4-1991 for Rs. 61,624/-. The appellant presented the cheque before the Bank for collection on 26-4-1991, but it was returned with EX.P-3. Memo with an endorsement refer to drawer on 27-4-91. Thereafter, the appellant issued a telegram to the respondent calling for payment within the statutory period before institution of proceedings under Section 138 of Negotiable Instruments Act. There was no response from the respondent. Therefore, the appellant preferred a private complaint before the learned Metropolitan Magistrate in C.C.No. 3774/91.

Before the learned Magistrate, the appellant examined two witnesses on his side and produced Exs.P-1 to EX.P-7 documents pending the trial, the appellant filed C.M.P. praying to send for a copy of the telegram from the Postal Department. Learned Judicial Magistrate dismissed the petition stating that as per the provision of Section 92 Cr.P.C., he has no authority to send for the document. After completion of the trial, the learned Judicial Magistrate acquitted the respondent on the ground that statutory notice required under Section 138 of Negotiable Instruments Act has not been served on the respondent demanding payment and that vitiates the trial. Aggrieved by the acquittal of the respondent, the petitioner has come forward with the instant appeal.

3. Heard, both sides. A short point that arise in this appeal is whether the telegram dated 2-5-91 can be accepted as the statutory notice required under Section 138 of Negotiable Instruments Act. It should be pointed out that the complaint has to be preferred within one month from the date of cause of action. In S. Prithviraj Kukkillaya v. Mathew Koshy 1991 Crl.L.J. 1771, a Division Bench of the Kerala High Court consisting of K.T. Thomas, J., (as His Lordship then was), and K. Shamsuddin, J; expressed the view that as per clause (b) of Section 142 of the Negotiable Instruments Act, no Court shall take cognizance of offence unless complaint is made within one month of the date, on which the cause of action arises under clause (c) of the proviso to Section 138 of the Negotiable Instruments Act. It was further held that clause (c) of section 138 of the Negotiable Instruments Act speaks of failure to make payment to the payee or the holder of the cheque as the case may be within fifteen days of notice contemplated in clause (b) of Section 138 of the Negotiable Instruments Act. It was also pointed out that the act of issuing cheque cannot be considered as starting point of commission of offence, nor does dishonour of cheque by itself give rise to a cause of action, because payment can be made on receipt of the notice of demand contemplated in clause (b) of Section 138 of the Negotiable Instruments Act and in that event there is no offence, nor any attempt to commit the offence, nor even a preparation to commit the offence and failure to pay the amount within fifteen days of receipt of notice alone is the cause of action. Therefore, it is seen that it does not attract the offence under Section 138 of the Act when the statutory notice as required is issued, but non-payment before the expiry of this statutory time limit provided under the section, only gives raise to cause of action.

4. In the instance case, the learned Counsel for the appellant vehemently contended that the provisions relating to the statutory notice is fully satisfi