Excelsior Correspondent
Srinagar, Mar 5 : High Court has held the single complaint for dishonour of more than one cheque as maintainable and dismissed the plea challenging the complaint registered under Negotiable Instrument Act.
Justice Sanjay Dhar dismissed the plea of the accused challenging the complaint filed against him for issuing the cheque which bounced. The complaint was challenged on the ground that the complainant has registered a single complaint against the dishonour of more than three cheques.
The court dismissed the plea by recording that a single complaint in respect of dishonour of more than three cheques is maintainable if a consolidated notice of demand is served upon the accused. Challenge was also made against the order of the Trial Magistrate whereby cognizance of the offence had been taken and the process was issued against the petitioner-accused.
The fact of the matter is that the petitioner-accused agreed to sell the land to the respondent-complainant for an amount of Rs.20 lakh. It was revealed during verification that the land was mortgaged to the bank, as such, the complainant/respondent requested the petitioner/accused to refund the sale consideration which he had already paid to the petitioner.
According to the respondent/complainant, for repaying the amount of sale consideration, the petitioner/accused issued four cheques in favour of the respondent/complainant. The respondent/complainant deposited these cheques with his banker but the same were returned unpaid due to insufficiency of funds.
Thereafter the respondent/complainant served a single legal notice upon the petitioner/accused calling upon him to pay the amount in respect of the dishonoured cheques within fifteen days. However, when the petitioner failed to discharge his liability towards the respondent, the impugned complaint came to be filed by him.
Justice Dhar made it clear that firstly for constituting an offence under Section 138 of the NI Act, there has to be a drawl of a cheque by a person for an amount of money in favour of another person for the discharge, in whole or part, of any debt or any other liability. Secondly, the cheque should be returned by the banker unpaid either because of insufficiency of funds or because it exceeds the amount arranged to be paid from the account.
The third requirement is that the payee or holder in due course should make a demand for payment of the amount of money by giving a notice in writing to the drawer of the cheque, within thirty days of the receipt of information by him about dishonour of the cheque and lastly. Court said, if the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within fifteen days of receipt of the said notice, the offence under Section 138 of the NI Act is constituted.
“Thus, unless a demand notice is served by the payee upon the drawer of the cheque after receipt of information regarding dishonour of the cheque and the drawer of the cheque fails to make payment within fifteen days despite receipt of such notice of demand, the offence under Section 138 NI Act would not be complete”, read the judgment.
It has been further added by the court that the cause of action for filing a complaint in favour of the payee against the drawer of the cheque arises only when the drawer of the cheque fails to make payment of the amount of the cheque to the payee or the holder in due course within fifteen days of receipt of notice of demand.
“Only one offence was constituted against the petitioner-accused when, despite receipt of a joint notice of demand, he failed to pay the amount to the respondent-complainant within the stipulated period of fifteen days. Thus, Section 219 of the Cr.P.C does not have any applicability to the facts of the present case”, the Bench observed.
Follow our WhatsApp channel
