IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 CRL.A.No. 1880 of 2007 -------------------------------------- CC.56/2000 of JUDL.MAGISTRATE OF FIRST CLASS-III(MOBILE), ERNAKULAM .................... APPELLANT/COMPLAINANT: M/S.KITEX GARMENTS LTD., KITEX HOUSE, 3RD FLOOR, SHENOY CHAMBERS, SHANMUGHAM ROAD, MARINE DRIVE, KOCHI, REP. BY J.BALAKRISHNAN, FINANCE ASSISTANT, AGED 31, S/O.SRI.L.JAYARAM, PADMALAYAM, ELOOR NORTH, UDYOGAMANDAL P.O. BY ADV. SRI.P.N.RAMAKRISHNAN NAIR RESPONDENT/ACCUSED: MOHAMMED, PROPRIETOR, KEEZHPPATTU, SILK HOUSE, TIRUR, MALAPPURAM. BY ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 06/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 1880 of 2007 --------------------------- JUDGMENT The respondent has entered appearance through counsel and service is complete. Heard both sides. 2. This is an appeal filed against the acquittal of the first respondent under Section 255 (1) Cr.P.C. of offence punishable under Section 138 of the Negotiable Instruments Act. The dismissal was for the reason that the complaint is filed when the cause of action allegedly arose on a second occasion. 3. It is vehemently contended before me by the learned counsel for the appellant that Exhibit D1 is only a letter, which is sent by the appellant in the usual course of business transactions, when a cheque is dishonoured and that is not notice under proviso (b) to Section 138 of the Negotiable Instruments Act and therefore, the cause of action has arisen only when the cheque was presented on a second occasion, got dishonoured and Exhibit P4 CRA 1880/07 2 letter was issued. It is true that there is difference in the wordings in Exhibit D1 letter issued on dishonour of cheque on the first occasion and in Exhibit P4 letter, which was issued on dishonour of cheque on the second occasion, on subsequent re-presentation. But, all the same, the relevant wordings in Exhibit D1 letter is as follows: “Mr.Justin Selvaraj has been authorised to receive the payments either in cash or by demand draft against the outstanding bills as given below and for bank charges incurred by us in lieu of bounced cheques.” Below the said letter, the bill number and date are given and the amount is mentioned as Rs.24,375/-, which is the amount covered by Exhibit P1 cheque. An amount of Rs.142/- is shown beneath that, probably, being the interest on that and another CRA 1880/07 3 amount of Rs.250/- as bank charges levied obviously on dishonour of the cheque. 4. By Exhibit D1, the fact of bouncing the cheque for Rs.24,375/- is intimated and demand is made to make payment of that amount either in cash or by demand draft through their agent Assistant Executive (Administration) Mr.Justin Selvaraj. The said letter cannot, but, be understood as a demand for payment of the amount covered by the dishonoured cheque (Exhibit P1). Consequently, information regarding return of the cheque as unpaid and demand for payment of the amount covered by the cheque as also the interest and the bank charges consequent thereon are made in Exhibit D1 and what is envisaged under proviso (b) to Section 138 of the Negotiable Instruments Act is also a demand of that nature only. No matter, how the information regarding dishonour of the cheque and demand for payment of the amount covered by the cheque are advanced, provided, it is in writing. CRA 1880/07 4 Thus, after making demand under Exhibit D1 on 5.11.1997 and by the non-payment of the amount within the statutory period, cause of action had arisen for filing a complaint under Section 138 of the Negotiable Instruments Act and within the statutory period no complaint had been filed by the appellant. It is, thereafter, that Exhibit P1 cheque was presented on a second occasion and was got dishonoured on 7.2.1998 and Exhibit P4 letter was issued on 17.2.1998, intimating dishonour of the cheque for want of insufficient funds and demanding the amount covered by the cheque. Inasmuch as cause of action had already arisen by non payment of the amount covered by the cheque, despite receipt of Exhibit D1 letter, no further cause of action can arise when the cheque is re- presented and again got dishonoured and Exhibit P4 notice is issued. Cause of action for a complaint on the basis of Exhibit D1 having got barred, the complaint filed by the appellant in the court below CRA 1880/07 5 on non-payment of the amount on receipt of Exhibit P4 notice, issued on dishonour of the cheque on a subsequent presentation, does not give any fresh cause of action, as has been rightly held by the court below, following the decision of the Apex Court in Sadanandan Bhadran v. Madhavan Sunil Kumar (1998 (2) KLT 765). Thus, there is no merit at all in this appeal and it deserves only to be dismissed. In the result, I dismiss this criminal appeal. 6th February, 2008 (K.P.Balachandran, Judge) tkv CRA 1880/07 6 K.P.Balachandran, J. --------------------- Crl.A.No.1880 of 2007 --------------------- JUDGMENT 6th February, 2008