Whether complaint for dishonour of cheque is tenable if it is filed after issue of second statutory notice?

Three-Judge Bench of this Court in MANU/SC/0797/2012 : 2013 ((1) SCC 177 MSR Leathers v. S. Palaniappan and Anr. held that there is nothing in the provisions of Section 138 of the Act that forbids the holder of the Cheque to make successive presentation of the cheque and institute the criminal complaint based on the second or successive dishonour of the cheque on its presentation. 

33. Applying the above Rule of interpretation and the provisions of Section 138, we have no hesitation in holding that a prosecution based on a second or successive default in payment of the cheque amount should not be impermissible simply because no prosecution based on the first default which was followed by statutory notice and a failure to pay had not been launched.

8. In the present case as pointed out earlier that cheques were presented twice and notices were issued on 31.08.2009 and 25.01.2010. Applying the ratio of MSR Leathers (supra) the complaint filed based on the second statutory notice is not barred and the High Court, in our view, ought not to have quashed the criminal complaint and the impugned judgment is liable to be set aside.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 26-27 of 2019 (Arising out of Special Leave Petition (Crl.) Nos. 6789-6790 of 2015)

Decided On: 08.01.2019

 Sicagen India Ltd. Vs. Mahindra Vadineni and Ors.

Hon'ble Judges/Coram:

R. Banumathi and Indira Banerjee, JJ.
Citation: AIR 2019SC 502

Print Page

Whether burden of proof will be on accused to prove that notice was not received by him in case of dishonour of cheque?

 In my considered view, in the present case, it is not as if no
legal notice was issued by the complainant to the accused. The legal
notice was duly issued and as per report on the receipt, the same could
not be served upon him because the accused was not available despite
the postal authorities attempting to serve him on more than one
occasions. Incidentally, a perusal of the statement made by the accused

under Section 313 Cr. P.C. will demonstrate that he has admitted the
factum of legal notice having been issued by the complainant to him.
Even otherwise, had his conduct been bonafide, then after the complaint
was filed in the Court by the complainant under Section 138 of the
Negotiable Instruments Act, 1881, nothing stopped the accused from
depositing the amount in issue before the learned trial Court. Further, in
my considered view, the legal position is that the drawer of the cheque
makes himself liable for prosecution under Section 138 of the Negotiable
Instruments Act, 1881 in case he fails to make the payment within fifteen
days of the receipt of the notice given to him by the drawee. Thus, the
accrual of cause of action is in fact the failure on the part of the drawer of
the cheque to pay the amount after receipt of the notice which gives rise
to the cause of action to the complainant to file complaint within the
statutory period prescribed under the Negotiable Instruments Act, 1881.
However, there may be unscrupulous persons/drawers who may manage
to get incorrect postal endorsements to defeat the claim of the drawee.
The moot issue is as to whether in such circumstances a drawee will be
without remedy or not. In my considered view, such like situation is duly
covered by the principles incorporated in Section 27 of the General
Clauses Act, which apply to a notice sent by post and it would be for the
drawer to prove that it was not really served and that he was not
responsible for such non-service.
18. In V. Raja Kumari Vs. P. Subbarama Naidu and another
(2004) 8 Supreme Court Cases 774 dealing with the case where notice
cannot be served on account of the fact that door of the house of the

drawer was found locked, the Hon’ble Apex Court has held that the
principles incorporated in Section 27 of the General Clauses Act will
apply in such like situation and it will be for the drawer to prove that he
was not really served and he was not responsible for such service.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No.: 30 of 2016

Date of Decision: 27.05.2016

Sandeep Walia  Vs. Sanjeev Dulta 

Coram:
 Mr. Justice Ajay Mohan Goel, Judge
Citation: 2016 ALLMR(CRI)JOURNAL580

Print Page

Effect of failure of accused to Reply notice issued u/s 138 of NI Act

The appellant filed the complaint within time. Though the accused denied the debt and pleaded that the loan was discharged by him, he stated that the pronote was not returned. The above contention of the accused is a clear indication that he executed a demand promissory note in favour of the complainant for the amount borrowed by him. The accused did not elicit any information from the prosecution witnesses or adduced any evidence to prove on what date he discharged the debt and in whose presence he paid the amount to the complainant. In the absence of such material and in view of the failure of the accused giving reply to the Ex. P-7 notice given by the complainant alleging that he borrowed the amount under a demand promissory note, it cannot be said that the accused is not liable to pay the amount due under the demand promissory note. Had he paid the amount due under the demand promissory note, there would not have been any problem for him to take return of the demand promissory note or acknowledgment in proof of repayment of the amount covered by the demand promissory note. The complainant asserted that the accused borrowed Rs. 60,000/- and a demand promissory note was executed in his favour for the said amount, though he did not produce the D.P. note on the ground that he lost it during the transit. Therefore, it has to be inferred that there was a debt due to the complainant and in discharge of the said debt, Ex. P-l cheque was issued by the accused to the complainant.

Andhra High Court

Gorantla Venkateswara Rao vs Kolla Veera Raghava Rao And Anr. on 7 October, 2005

Equivalent citations: 2005 (2) ALD Cri 840, I (2007) BC 446, 2006 CriLJ 1

Print Page