Kerala High Court
P. Ravindranathan vs C.V. Hussain And Anr. on 27 November, 1991
Equivalent citations: [1994]79COMPCAS78(KER)
JUDGMENT B.K. Thulasidas, J.
1. This revision is directed against the order in 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 had 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 listed under Clause (b) of Section 138 read with Section 142(b) of the Negotiable Instruments Act, 1881".
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 April 1, 1991, and was dishonoured on the next day. It was re-presented on May 9, 1991, and again it was dishonoured. Thereupon, the petitioner sent a notice to the respondent on May 14, 1991, which was accepted by him on May 27, 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 limits prescribed, 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 refusal/failure to pay. The decisions of this court in S. Prithviraj Kukkillayya v. Mathew Koshy [1991] 71 Comp Cas 131 (Ker) and N.C. Kumaresan v. Ameerappa [1992] 74 Comp Cas 848 (Ker) 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.
6. The criminal miscellaneous cases is, accordingly, allowed.