Neetha Kuruvila v. State of Kerala and Lash Ottapurakkal

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY, THE 11TH DAY OF JULY 2018 / 20TH ASHADHA, 1940** ## **Crl.MC.No. 4566 of 2014** **IN CC 1037/2013 of JUDICIAL MAGISTRATE OF FIRST CLASS -IV,KOZHIKODE** ## **PETITIONER:** **NEETHA KURUVILA AGED 35 YEARS W/O.VINEETH KURUVILA, DAZZLE INN, NEAR PROVIDENCE COLLEGE, MALAPPARAMBA P.O., KOZHIKODE - 673 009.** ## **BY ADV. SRI.P.G.JAYASHANKAR** ## **RESPONDENT/STATE/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. 2 LASH OTTAPURAKKAL AGED 42 YEARS S/O.O.P.VASU, MALABAR TRADE LINKS, 3RD FLOOR,CCHS BUILDING, YMCA CROSS ROAD, CALICUT -673 001.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11.07.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 4566 of 2014 2** ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C No. 4566 of 2014 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11[th] day of July, 2018 ## **O R D E R** This is a petition filed by the petitioner, who is the sole accused in a prosecution launched by the 2[nd] respondent against her under Section 142 of the Negotiable Instruments Act, 1881 (for short 'the NI Act') alleging commission of offence punishable under Section 138 of the NI Act. 2. The facts of the case is briefed in a nutshell hereunder : A complaint as Annexure A was filed by the 2[nd] respondent before the Judicial First Class Magistrate Court-IV Kozhikode under Section 190(1)(a) of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C). The complaint is filed to launch a prosecution against the petitioner herein for the offence punishable under Section 138 of the NI Act. The true copy of the complaint is available with this petition as Anenxure A. The allegations unveiled by Annexure A complaint by the complainant are summarised hereinbelow : The complainant and the accused are known to each other. Rs. 5,00,000/- was borrowed by the accused from the complainant for effective conduct of his business. Towards the discharge of the said **Crl.MC.No. 4566 of 2014 3** debt, the accused had signed and issued cheque bearing No.586144 dated 26.03.2013 for a sum of Rs.5,00,000/- drawn from the account maintained by her with the Malaparamba Branch of Catholic Syrian Bank, Civil Station P.O., Kozhikode. The said cheque was presented by the complainant for encashment before the Bank. It was bounced and returned for the reason 'account closed' as evidenced from a memo issued by the Bank. The memo is exhibited in Annexure A as document No.2. A statutory lawyer notice was caused to be issued on 04.06.2013 to the accused by the complainant informing him about the factum of dishonour of the cheque for the reason 'account closed'. The accused was demanded by the notice to repay the amount due under the cheque within the 15 days' time granted as per the notice to avoid prosecution. The service of notice on the accused was well evidenced by document No.4 **,** a postal receipt exhibited in Annexure A. A reply notice dated 06.06.2013 was sent by the accused to the complainant, which is evidenced from document No.5 appended to Annexure A. Annexure A was filed on 02.07.2013, i.e. within 30 days from 04.06.2013, i.e. the date of service of lawyer notice, as per the mandate of the N.I.Act. 3. The contention of Sri.P.G.Jayasankar was that prior to the issuance of notice appended to Annexure A as Annexure D, another notice was issued by the complainant to one Mr.Vineeth Kuruvila, who **Crl.MC.No. 4566 of 2014 4** is none other than the husband of the petitioner. The learned counsel has drawn my attention to the recitals in Annexure B, which is extracted hereunder: “I am instructed by Lash Ottapurakkal, S/o.Vasu O.P., own affairs, residing at C-2 Athady Apartment, Kaloor Road, Mankave P.O., Calicut-673 007 Valayanad amsom desom of Kozhikode taluk to issue this notice to you as under. Please take notice that your cheque bearing No.586144 dated 26.03.2013 drawn at the Catholic Syrian Bank Ltd for an amount of Rs.5,00,000/- (Rupees five lakh only) issued by you to my client is bounced from your bank account on 27.03.2013 with an endorsement 'Account Closed'. My client submits that the above cheque, was presented for collection at your instance, which was executed, signed and issued by you for discharging the amount due to my client. My client further adds that you had assured my client that the said cheque would be honoured on its presentation and that there are sufficient funds in your account to honour the same. However, the assurance made by you is not complied with and therefore my client is now constrained to initiate appropriate legal action against you for the offence committed by you under Negotiable Instruments Act. Now, I am asked by my client to direct you to pay an amount of Rs.5,00,000/- (Rupees five lakh only) covered by the cheque issued by you to my client within 15 days on receipt of this notice or else please take notice that appropriate legal action will be initiated against you, for the offence committed by you for causing the said cheque to be bounced without honouring the same, at your risk as to cost and consequences. The cost of this notice is Rs.1,500/-.” 4. On receipt of Annexure B notice dated 05.04.2013, Mr.Vineeth ## Kuruvila, husband of the petitioner, had sent Annexure C reply dated 20.04.2013 admitting the monetary transactions with the 2[nd] **Crl.MC.No. 4566 of 2014 5** respondent. It has been specifically recited in paragraphs 2 to 5 of Annexure C that the cheque bearing No.586144 was not issued towards discharge of a liability in a monetary transaction as alleged by the 2[nd] respondent herein (accused), but as security in a totally different transaction. According to him, a blank cheque bearing No.586144 was issued as security and it was forged/misused and presented for encashment and upon bouncing the same for the reason, 'account closed' that the prosecution was launched based on Annexure B. Mr.Vineeth Kuruvila had also stated in Annexure C that for the forgery of the cheque bearing No.586144, he is proposing to take legal proceedings against the complainant under Section 465 and 420 IPC. Annexure D is copy of a notice issued much belatedly on 04.06.2013 to the petitioner herein, the wife of Mr.Vineeth Kuruvila. It is stated in Annexure D that the cheque bearing No.586144 dated 26.03.2013 drawn by the addressee at the Catholic Syrian Bank Limited for a sum of Rs.5,00,000/- was bounced and returned by the Bank on 28.05.2012 with a memo stating the reason as 'account closed'. The contention of the sender of Annexure D was that the cheque bearing No.586144 was drawn by the addressee from the account maintained by her with the Malaparamba Branch of Catholic Syrian Bank, Civil Station P.O., Kozhikode and signed and issued by her towards the discharge of the liability of Rs.5,00,000/- due from **Crl.MC.No. 4566 of 2014 6** her to the sender of the notice. It is also alleged in Annexure D that the addressee alongwith her husband had visited the office of the complainant at YMCA Road, Calicut and there the cheque was issued on the assurance that it would be honoured on presentation as sufficient fund was available in the account maintained with the Bank. According to the complainant, based on the assurance cheque was presented but got returned, bounced along with a memo stating the reason 'account closed'. Legal proceedings was also proposed to be initiated in the event of failure of the petitioner to pay Rs.5,00,000/within 15 days from the date of receipt of Annexure D by her. In response, Annexure E reply notice was sent by her to the complainant. The contentions of the petitioner as evidenced from paragraphs 2 and 3 of Annexure E are extracted hereinbelow : “I am instructed that your client is a total stranger to my client and she had neither any money transaction with your client nor issued any cheque as mentioned in your notice. The averment in your notice that the cheque No.586144 dated 26.03.2013 drawn on Catholic Syrian Bank was executed, signed and issued by my client to discharge the amount due by my client is totally incorrect, false and false to the knowledge of your client. The further averment in the notice that my client along with her husband came to your client's office MTC at YMCA Cross Road, Calicut and assured your client that the cheque would be honoured on presentation and that there is sufficient fund in her account is nothing but a wild imagination of your client. I am instructed by my client to inform your client that if your client does not withdraw the false allegations and imputations made against my client through the notice within three days of the receipt of **Crl.MC.No. 4566 of 2014 7** this reply notice, my client shall be constrained to initiate appropriate legal actions against your client and in that event your client would be held liable for all costs and consequences incurred upon my client including Rs.1250/- the fee for this notice.” 5. The prosecution was evidenced from Annexure A as launched on 02.07.2013. It is pertinent to note that since the petitioner had sent Annexure E reply notice denying the borrowal of Rs.5,00,000/and her liability to repay the said sum, the complainant need not have to wait for the lapse of 15 days' time from the date of receipt of Annexure D notice to see whether repayment will come or not. Therefore the complainant in the case on hand is only required to wait for 30 days' time as per the mandate of Section 142 of N.I. Act, from the date on which Annexure E reply notice was received by him as evidenced from Annexure A. 6. Drawing the attention of this Court to the aforesaid aspects, it is contended by the learned counsel that the cause of action would arise only once and that would be with the failure to repay the amount in response to the demand made by the complainant or with the denial of the liability to pay the sum in the reply notice to the statutory notice as contemplated by the proviso to Clause (b) of Section 138 N.I. Act. Therefore, the cause of action had originated in the case on hand on 20.04.2013, with the receipt of Annexure C reply notice by the complainant in response to Annexure B notice sent by him. The **Crl.MC.No. 4566 of 2014 8** case of the complainant at the time of issuance of Annexure B notice was that petitioner's husband Sri. Vineeth Kuruvila owes a sum of Rs.5,00,000/- to the complainant/2[nd] respondent towards repayment of a debt due from him and towards discharge of the said sum, a cheque bearing No.586144 was issued by him. Therefore, Annexure B notice was sent to petitioner's husband requiring him to repay Rs.5,00,000/- covered by cheque No.586144, issued by him to the complainant. Admittedly, petitioner's husband received Annexure B notice and responding to that, Annexure C reply notice was sent on 20.04.2013. In Annexure C reply notice it has been stated by him specifically that the monetary liability existing among himself and the complainant had already been discharged and the cheque bearing No.586144 was the one issued as security for the said monetary liability to secure the repayment. Therefore, the cause of action for launching prosecution under Section 142 N.I Act was originated on the date on which the liability was denied firstly by petitioner's husband to whom Annexure B notice was issued by the complainant on 5.4.2013. If at all any prosecution was liable to be launched by the complainant, it has to be done on expiry of 45 days' time from the date of receipt of Annexure B notice by Sri. Vineeth Kuruvila, the petitioner's husband. In the case on hand, 30 days' time period would start to run from the date of service of Annexure C notice wherein the liability **Crl.MC.No. 4566 of 2014 9** to repay as such is denied. It is pertinent to notice that the complainant failed to launch a prosecution under Section 142 of N.I. Act by filing a private complaint within time. The complainant had waited till the receipt of Annexure C notice sent in reply by the counsel on behalf of Sri.Vineeth Kuruvila. She had also caused a second notice to be served on the petitioner. The reason stated in the second notice was that cheque bearing No.586144 issued by the petitioner to the complainant towards the discharge of a monetary liability for Rs.5,00,000/- was dishonoured for the reason 'account closed'. The cheque is the same as dealt with in the second notice sent as Annexure D. A single cheque is impracticable to be issued to two different persons towards discharge of two separate liabilities. Moreover, a second cause of action will not originate from dishonour of a single cheque towards repayment of the sum allegedly due therefrom. ## 7. In this connection it is pertinent to have look at **Sadanandan** ## **Bhadran v. Madhavan Sunil kumar** [AIR 1998 SC 3043]. The Apex Court had considered in the case on hand an issue which has arisen in a prosecution launched under Section 142 for the offence under Section 138 of the NI Act, wherein notices have been issued severally against the accused. The High Court in that case had held that issuance of notice severally after separate presentation on each **Crl.MC.No. 4566 of 2014 10** occasions would create separate causes of action. The Apex Court considered the matter and held that issuance of separate notices after separate presentation of the cheque before the Bank and after obtaining the same returned as bounced will not create separate causes of action. The Apex Court, has held that a cause of action will arise only once. The dictum of the Apex Court contained in paragraphs 7 and 8 of the judgment cited supra being apposite, is extracted hereunder : “7. In a generic and wide sense (as in Section 20 of the Civil Procedure Code, 1908) 'cause of action' means every fact which it is necessary to establish to support a right or obtain a judgment. Viewed in that context, the following facts are required to be proved to successfully prosecute the drawer for an offence under Section 138 of the Act: - (a) that the cheque was drawn for payment of an amount of money for discharge of a debt/liability and the cheque was dishonoured; - (b) that the cheque was presented within the prescribed period; - c) that the payee made a demand for payment of the money by giving a notice in writing to the drawer within the stipulated period; and - (d) that the drawer failed to make the payment within 15 days of the receipt of the notice. If we were to proceed on the basis of the generic meaning of the term 'cause of action' certainly each of the above facts would constitute a part of the cause of action but then it is significant to note that clause (b) of Section 142 gives it a restrictive meaning, in that, it refers to only one fact which will give rise to the cause of action and that is the failure to make the payment within 15 days from the date of the receipt of the notice. The reason behind giving such a restrictive meaning is not far to seek. Consequent upon the failure of the drawer to pay the money within the period of 15 days as envisaged under clause @ of the proviso to Section 138, the liability of the drawer for **Crl.MC.No. 4566 of 2014 11** being prosecuted for the offence he has committed arises, and the period of one month for filing the complaint under section 142 is to be reckoned accordingly. The combined reading of the above two sections of the Act leaves no room for doubt that cause of action within the meaning of Section 142 arises - and can arise - only once. 8. Besides the language of Sections 138 and 142 which clearly postulates only one cause of action there are other formidable impediments which negates the concept of successive causes of action. One of them is that for dishonour of one cheque there cane be only one offence and such offence is committed by the drawer immediately in his failure to make the payment within fifteen days of the receipt of the notice served in accordance with clause (b) of the proviso to Section 138. That necessarily means that for similar failure after service of fresh notice on subsequent dishonour the drawer cannot be liable for any offence nor can the first offence be treated as non est so as to give the payee a right to file a complaint treating the second offence as the first one. At that stage it will not be a question of waiver of the right of the payee to prosecute the drawer but of absolution of the drawer of an offence, which stands already committed by him and which cannot be committed by him again.” 8. Therefore, it is clear from the extract above that a right will be created only on getting the cheque returned dishonoured after presentation. The cause of action will arise after 15 days' from the date of receipt of the notice or after 15 days from the default of the accused to repay the same. A cause of action will end on repayment being made by the accused after receipt of the notice. It is also reiterated in the dictum that the cause of action will arise only once. 9. When viewed in the backdrop of the aforesaid dictum, this Court is convinced that Annexure A complaint is vitiated for the reason **Crl.MC.No. 4566 of 2014 12** stated. The complainant has caused to issue notices to two different persons (husband and wife) on the allegation that cheque with No.586144 dated 26.03.2013 has been drawn from the account maintained by each of them and issued them separately towards the discharge of the liability due from either of them. Some falsity is discerned from the allegations. It is impossible to draw a cheque bearing the same number from accounts maintained by two different persons with a bank. The very same cheque is impracticable to be issued towards discharge of two separate liabilities. As is evidenced from the dictum supra, two different causes of action will not originate from dishonour of a single cheque. For the foregoing reasons, Annexure A complaint is liable to be quashed. In the result, this Crl.M.C. stands allowed and Annexure A complaint is quashed forthwith. **Sd/-** **MARY JOSEPH** **JUDGE** ttb/17.07. **Crl.MC.No. 4566 of 2014 13** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE A**|**ANNEXURE-A: CERTIFIED COPY OF THE COMPLAINT**| |---|---| ||**IN CC NO.1037/2013, ON THE FILES OF**| ||**JUDICIAL MAGISTRATE OF THE FIRST CLASS -**| ||**IV, KOZHIKODE.**| |**ANNEXURE B**|**ANNEXURE-B: TRUE COPY OF THE LAWYER NOTICE**| ||**ISSUED BY THE 2ND RESPONDENT TO THE HUSBAND**| ||**OF THE PETITIONER DATED 5.4.2013**| |**ANNEXURE C**|**ANNEXURE-C: TRUE COPY OF THE REPLY NOTICE**| ||**DATED 20.4.2013 ISSUED BYT THE HUSBAND OF**| ||**THE PETITIONER TO THE 2ND RESPONDENT**| |**ANNEXURE D**|**ANNEXURE-D: TRUE COPY OF THE LAWYER NOTICE**| ||**DATED 4.6.2013 ISSUED BY THE 2ND RESPONDENT**| ||**TO THE PETITIONER**| |**ANNEXURE E**|**ANNEXURE-E: TRUE COPY OF THE REPLY NOTICE**| ||**DATED 6.6.2013 ISSUED BY THE PETITIONER TO**| ||**THE 2ND RESPONDENT.**|