Merely because the civil suit is pending, it cannot be said that the cheque can be presented by the complainant at any time during the pendency of the said civil suit.

 As to this, both the Courts below held that since the suit based on Ex.A-9 promissory note was pending before a civil Court, it cannot be said that the cheque was presented beyond the period of limitation. The findings recorded by both the Courts below on this aspect do not seem to be correct. Merely because the civil suit is pending, it cannot be said that the cheque can be presented by the complainant at any time during the pendency of the said civil suit. The cause of action to file the complaint under Section 138 of the Negotiable Instruments Act is an independent cause of action and the cheque therefore shall be presented by the complainant within the period of validity of the debt borrowed. In the instant case, the cheque was presented beyond the period of limitation and therefore, it will not give rise to any cause of action.

2012(2)ALD(Cri)40, 2012(3)ALT(Cri)141;2013(1)crimes 325 (A.P)

IN THE HIGH COURT OF ANDHRA PRADESH

Crl. R.C.No. 1821 of 2004

Decided On: 28.02.2012

Appellants: Mandapalli Nirmalatha
Vs.
Respondent: State of A.P. rep. by Public Prosecutor, High Court of A.P., Hyderabad and another

1. This criminal revision case arises out of the judgment dated 20.10.2004 in Crl.A.No. 231 of 2001 passed by the VI Additional Sessions Judge, Ongole. I have heard the learned counsel appearing for the parties.

2. The brief facts of the case are that the revision petitioner-accused borrowed an amount of Rs. 10,000/-from one Addanki Venkata RAthnam of Chirala on 11.05.1995 and executed a promissory note in his favour agreeing to repay the amount borrowed together with interest @ 36% per annum. It is said that in spite of the repeated demands by the said Venakta Rathnam, the revision petitioner did not pay the amount and as Mr.Venkata Rathnam was in need of money, he transferred the promissory note in favour of the second respondent-complainant on 02.02.1998 for an amount of Rs. 12,000/-. Subsequent to the said transfer, on demand made by the second respondent-complainant to pay the amount due under the transferred promissory note, the revision petitioner issued cheque dated 25.02.1998 for an amount of Rs. 25,000/-. The complainant presented the cheque for collection at Andhra Bank, Kanigiri on 02.07.1998 which was sent to Andhra Bank, Chirala for collection and was returned with memo on 04.09.1998 stating that the account of the revision petitioner was closed. Subsequently, the complainant issued registered notice on 16.09.1998 demanding the revision petitioner-accused to pay the cheque amount within 15 days. The revision petitioner evaded to receive the said notice and ultimately received the same on 08.10.1996 and got issued a reply to the said notice through her advocate on 17.10.1998. Subsequently, the second respondent-complainant filed complaint against the revision petitioner under Section 138 of the Negotiable Instruments Act on 12.11.1998. The revision petitioner admitted her signatures on Ex:P-9 promissory note and Ex.P-1 cheque, but contended that Batchu Anjaneyulu who is a relative of the complainant was running a chit in which the revision petitioner was a member and the said Anjaneyulu obtained two blank cheques and Ex.P-9 promissory note in connection with the said chit transaction and basing on the said documents, the complainant filed the present complaint to harass her.

3. Before the trial Court, PWs.1 to 3 were examined and Exs.P-1 to P10 were marked on behalf of the complainant and DW-1 was examined and Ex.D-1 was marked on behalf of the accused/revision petitioner.

4. Learned trial Court on considering the evidence on record, convicted the revision petitioner for the offence under Section 138 of the Negotiable Instruments Act and sentenced her to undergo simple imprisonment for a period of six months and to pay fine of Rs. 3,000/-, in default to suffer simple imprisonment for one month. On appeal there-from filed by the revision petitioner, the appellate Court confirmed the conviction and sentence passed against the revision petitioner. Feeling aggrieved, the revision petitioner filed the present revision.

5. In the instant case, the complainant issued the first legal notice on 16.09.1998 and the second legal notice on 18.10.1998. The reply notice was sent by the revision petitioner on 17.10.1998. The contention of the revision petitioner in this case is that the debt due under Ex.P-9 promissory note was allegedly borrowed on 11.05.1995 and the cheque said to have been issued by the revision petitioner should be presented by the complainant on or before 11.05.1998 but it was actually presented on 02.07.1998. Therefore, she states that on the date of presentation of the said cheque, there was no existing legally enforceable debt. As to this, both the Courts below held that since the suit based on Ex.A-9 promissory note was pending before a civil Court, it cannot be said that the cheque was presented beyond the period of limitation. The findings recorded by both the Courts below on this aspect do not seem to be correct. Merely because the civil suit is pending, it cannot be said that the cheque can be presented by the complainant at any time during the pendency of the said civil suit. The cause of action to file the complaint under Section 138 of the Negotiable Instruments Act is an independent cause of action and the cheque therefore shall be presented by the complainant within the period of validity of the debt borrowed. In the instant case, the cheque was presented beyond the period of limitation and therefore, it will not give rise to any cause of action. Further, in this case, it is brought on record by the revision petitioner through her evidence before the learned trial Court that a relative of the complainant filed another complaint against the revision petitioner which is C.C.No. 112 of 1998 on the file of the Additional Judicial Magistrate of First Class, Chirala and it is marked as Ex.D-1. The number of the cheque in the present case is 0208203, whereas the other cheque is 0208202. This fact lends assurance to the contention of the revision petitioner that two blank cheques have been obtained by the relative of the complainant in connection with the chit transaction from the revision petitioner. Thus, by examining herself as DW-1 and by marking Ex.D-1, the revision petitioner could be able to rebut the presumption in favour of the complainant under Section 139 of the Negotiable Instruments Act which fact has been overlooked by both the Courts below.

6. In Krishna Exports v. Raju Das (2004) 13 SCC 498 the Supreme Court held as follows:

When the complainant served two demand notices upon the drawer and the complaint was filed in terms of the second notice. But, by the time the complaint was filed one month from the date of receipt of first notice expired. It is the settled law that cause of action to file complaint on non-payment despite issue of notice arises once. And in the instant case it did arise after expiry of 15 days from the date of receipt of the first notice. Accordingly, limitation period of one month for filing complaint is to be reckoned with reference to the first notice. That being so, the complaint was time barred.

7. In the instant case also, the complainant issued first legal notice on 16.09.1998, the second legal notice on 08.10.1998 and the complaint was filed on 12.11.1998 which is long after the issuance of the first legal notice by the complainant and by which time the limitation to file the complaint as provided under Section 138 of the Negotiable Instruments Act expired. Therefore, the complaint filed by the complainant-second respondent is barred by limitation. For the forgoing reasons, the conviction and sentence passed by the learned trial Court against the revision petitioner-accused which was confirmed by the first appellate Court are set aside. The revision petitioner is acquitted of the offence under Section 138 of the Negotiable Instruments Act. The fine amount, if any, paid by the revision petitioner shall be refunded to her. The criminal revision case is allowed.

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