THE HONOURABLE MR v. M/s.A.R.K.Film Enterprises

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 10.07.2007CORAM:THE HONOURABLE MR.JUSTICE K.N.BASHACRL.O.P.No.28077 of 2006& M.P.No.1 of 2006C.H.V.Appa Rao.. Petitioner/PetitionerVs.M/s.A.R.K.Film Enterprises,Rep. by its Partner,Mr.T.A.Aulpathy,New No.133 (Old No.62-A),G.N.Chetty Road,Theagaraya Nagar,Chennai – 600 017. ... Respondent/RespondentPrayer : Criminal Original Petition filed under Section 482 of theCriminal Procedure Code, praying to call for the records in C.C.No.3670of 2005 on the file of XIV Metropolitan Magistrate Court, Egmore,Chennai, and quash the same.For Petitioner : Mr.P.SukumarFor Respondent : Mr.E.Balaji, for M/s.Waraon & SairamsO R D E RThe learned counsel for the petitioner submitted that thepetitioner has come forward with this petition seeking for the relief ofquashing the proceedings initiated against the petitioner for thealleged offence under Section 138 of the Negotiable Instruments Act(hereinafter referred to as "the Act"). 2. The learned counsel for the petitioner submitted that the caserelating to the dishonour of three cheques, viz., (1) Cheque No.0469484dated 27.07.2004 for a sum of Rs.5,00,000/-, (2) Cheque No.0469485 dated10.08.2004 for a sum of Rs.7,00,000/- and (3) Cheque No.0469486 dated25.08.2004 for a sum of Rs.7,50,000/-. It is submitted by the learnedcounsel for the petitioner that the allegation of the complainant isthat all the three cheques were presented before their bankers and thecheques were dishonoured on the ground of "funds insufficient". It iscontended by the learned counsel for the petitioner that the complainantafter receiving the bank memo dated 03.09.2004 sent a statutory noticedated 08.09.2004 calling upon the petitioner to pay the amount towardsthe dishonoured cheques. The learned counsel for the petitionercontended that after sending the notice, the respondent/complainant hasnot taken any steps to file the complaint for the alleged offence under https://hcservices.ecourts.gov.in/hcservices/ Section 138 of the Act. It is submitted by the learned counsel for thepetitioner that with a view to overcome the infirmity and lacuna and inorder to save the period of limitation as contemplated under Section 138of the Act, the respondent/complainant once again presented the abovesaid three cheques on 20.011.2004 in their bankers and all the threecheques were said to have dishonoured once again and thereafter, issueda second statutory notice dated 27.11.2004 under Section 138 of the Actcalling upon the petitioner to pay the amount towards the dishonouredcheques.3. It is submitted by the learned counsel for the petitioner thatthe learned counsel for the petitioner that in view of filing thecomplaint on the basis of the second notice, the complaint itself isbarred by limitation. The learned counsel for the petitioner alsoplaced reliance on the following decisions of the Hon'ble SupremeCourt :i.SADANANDAN BHADRAN V. MADHAVAN SUNIL KUMAR reported inAIR 1998 SC 3043 ;ii.PREM CHAND VIJAY KUMAR V. YASHPAL SINGH AND ANOTHERreported in (2005) 4 SCC 417 ;iii.DALMIA CEMENT (BHARAT) LTD. V. GALAXY TRADERS &AGENCIES LTD. reported in (2001) 6 SCC 4634. Per contra, learned counsel for the respondent/complainantcontended that there is no infirmity or illegality in the complaintpreferred by the respondent/complainant. It is submitted by the learnedcounsel for the respondent that the first notice said to have been sentby the respondent/complainant dated 08.09.2004 is only by way oftelegram and as such the first notice cannot be construed to be astatutory notice as contemplated under Section 138 of the Act.Therefore, it is submitted by the learned counsel for the respondentthat only the present notice dated 27.11.2004 alone should be construedand considered as statutory notice and as such the complaint is filedwell within the time and the same is not barred by limitation.5. I have carefully considered the rival contentions put forward byeither side and also perused the complaint copy in this case.6. It is seen that the petitioner is facing trial for the allegedoffence under Section 138 of the Act. The only ground raised by thepetitioner for quashign the proceedings is that the respondent/complaintpreferred the complaint only on the basis of the issue of secondstatutory notice dated 27.11.2004 and as such the same is barred bylimitation in view of the admitted fact that the respondent/complainanthas not taken any steps to file the complaint after issuing the firstnotice dated 08.09.2004. It is contended by the learned counsel for thepetitioner that the cause of action arose from the date of receivingstatutory notice dated 08.09.2004 by the petitioner herein.7. The learned counsel for the petitioner has also rightly placedreliance on the decisions of the Hon'ble Supreme Court in SADANANDANBHADRAN V. MADHAVAN SUNIL KUMAR reported in AIR 1998 SC 3043 wherein theHon'ble Apex Court has held as follows: https://hcservices.ecourts.gov.in/hcservices/ "... clause (a) of the proviso to Section 138 did notput any embargo upon the payee to successively presenta dishonoured cheque during the period of its validity.On each presentation of the cheque and its dishonour afresh right and not cause of action accrues. The payeeor holder of the cheque may, therefore, without takingpre-emptory action in exercise of his right underclause (b) of Section 138 of the Act, go on presentingthe cheque so as to enable him to exercise such rightat any point of time during the validity of the cheque.But once a notice under clause (b) of Section 138 ofthe Act is 'received' by the drawer of the cheque, thepayee or the holder of the cheque forfeits his right toagain present the cheque as cause of action has accruedwhen there was failure to pay the amount within theprescribed period and the period of limitation startsto run which cannot be stopped on any account...".Subsequently, in the latest decision in PREM CHAND VIJAY KUMAR V.YASHPAL SINGH AND ANOTHER reported in (2005) 4 SCC 417, the HonourableSupreme Court has considered the decisions rendered by the Apex Courtearlier in SADANANDAN BHADRAN V. MADHAVAN SUNIL KUMAR (AIR 1998 SC 3043)and DALMIA CEMENT (BHARAT) LTD. V. GALAXY TRADERS & AGENCIES LTD.reported in (2001) 6 SCC 463. In that decision the Apex Court heldthat,"It is well settled that if dishonour of a cheque hasonce snowballed into a cause of action it is notpermissible for a payee to create another cause ofaction with the same cheque. The period of one monthfor filing the complaint will be reckoned from the dayimmediately following the day on which the period offifteen days from the date of the receipt of thenotice by the drawer expires".8. Therefore, the above said well settled principle of law laiddown by the Hon'ble Apex Court is squarely applicable to the facts ofthe instant case and as such, the complaint preferred by thecomplainant/ respondent is liable to be quashed. The contention putforward by the learned counsel for the respondent that the first noticedated 08.09.2004 was sent by the respondent only through telegram and assuch, the same cannot be construed as statutory notice, as contemplatedunder Section 138 of the Act, is unacceptable and unsustainable in law.9. This Court in V.P.Revathi v. Asha Bagree, Director,M/s.B.M.Steels reported in 1991-L.W. (Crl.) 468 has held as follows :".. "Notice in writing" which is required under S.138(b)of Negotiable Instruments Act need not necessarily be onlyby registered post, and it can as well be a telegram or bya letter."10. In yet another decision in Kannan V. Kothandan reported in 1995MLJ (NOR) 35 this Court has held as follows :"The notice as contemplated Clauses (b) or (c) of the https://hcservices.ecourts.gov.in/hcservices/ Proviso to Sec.138 of the Negotiable Instruments Act, mustbe in writing and there is no further prescription withregard to the mode of despatch and service of such noticeon the drawer of such cheque. Therefore, there can be noprohibition for such a notice to be despatched throughpost registered or otherwise or by telegram or served inperson by himself or through a special messenger."11. The Delhi High Court in Yoginder Kumar Sharma v. Ashok KumarSharma & Anr. reported in 2000 (1) Crimes 471 has held as follows :"Telegraphic demand of amount covering dishonoured chequecan be regarded as notice within the meaning of clause (b)of proviso to Section 138 of the Act."12. This Court, in two other decisions in Pattabirama Reddy v.Nageshwara Reddy reported in 2001-2-L.W.(Crl.) 781 (Justice B.AkbarBasha Khadhiri) and in M.Murugan v. Queen Jhansi Vetrikodi reported in2004 (2) CTC 530 (Justice A.Packiaraj), has held that telegraphic noticeis not a valid notice. This Court is constrained to state that thosetwo decisions are rendered on the basis of peculiar facts andcircumstances of those cases. In the first case, Justice B.Akbar BashaKhadhiri held that the complainant has not produced the certified copyof the telegram and as such no probative value could be attached to suchtelegram. In the decision rendered by Justice A.Packiaraj, it was heldby His Lordship that "telegram by itself is not Authenticated documentunless it is confirmed by subsequent signed application." In that casethe complainant has not produced any material to authenticate theissuance of telegraphic notice. Therefore, in view of the categoricalview taken by this Court as well as the decision rendered by the DelhiHigh Court, this Court has no hesitation to hold that there can be noprohibition for despatching statutory notice under Section 138 of theAct through registered post or by telegram or through a specialmessenger as Section 138 of the Act does not prescribe any particularform or mode of despatch for service of notice.13. As far as this case is concerned, as it is already pointed outthat the complainant himself has chosen to send the first notice throughtelegram and sending such notice is also not disputed by him and assuch, there is no difficulty in arriving at the conclusion that thefirst notice sent through telegram is to be construed as a statutorynotice under Section 138 of the Act. Therefore, in this case, the firstnotice sent and served through telegram dated 09.08.2004 and thecomplainant has not initiated any action under Section 138 of the Act byfiling the complaint, on the other hand, with a view to fill up thelacuna, the complainant presented the cheques once again and on thedishonour of those cheques, issued a second statutory notice dated27.11.2004 and only on the basis of serving second statutory notice, thepresent complaint is filed by the complainant herein. Therefore, it iscrystal clear that the period of one month for filing the complaint willbe reckoned from the day immediately following the day on which theperiod of fifteen days from the date of the receipt of the notice by thedrawer expires and as such, the present complaint is clearly barred bylimitation as the same is filed only on the basis of service of second https://hcservices.ecourts.gov.in/hcservices/ statutory notice.14. For the aforesaid reasons, the proceedings initiated againstthe petitioner for the offence under Section 138 of the Act inC.C.No.3670 of 2005 on the file of the learned XIV MetropolitanMagistrate Court, Egmore, Chennai, is quashed.This petition is ordered accordingly. Consequently, connectedMiscellaneous Petition is closed.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The XIV Metropolitan Magistrate, Egmore, Chennai.2. -do- Thro. The Chief Judicial Magistrate Egmore, Chennai.+ 1 cc to MR.Waraon & Sairams Advocate SR.NO.41733+ 1 cc to Mr p.Sukumar Advocate SR.NO.41705NMS(CO)RD 14.8.07Crl.O.P.No.28077 of 2006 & M.P.No.1 of 2006