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1995 DIGILAW 804 (ALL)

SUBHASH BHAN v. J M D EXPORTS

1995-08-07

S.C.JAIN

body1995
S. C. JAIN, J. ( 1 ) THIS revision is directed against an order dated 16. 7. 1992 passed by Shri B. S. Rajpoot, Chief Judicial Magistrate, Farrukhabad in Case No. 138 of 1992 dismissing the complaint against the respondents under section 138, Negotiable Instruments act. ( 2 ) THE parties to this revision were having business dealings. Some cheques were issued by the respondents, M/s. J. M. D. Exports as a consideration for purchase of the goods from Subhash Bhan, the applicant herein. Cheque dated 23. 9. 1991, which was for a sum of Rs. 1,00,000/-, when presented to the bank was dishonoured on 21. 9. 1991, cheque dated 26. 12. 1991, for Rs. one lac was dishonoured on 21. 12. 1991, cheque dated 27. 9. 91 for Rs. 51,190,59 was dishonoured on 21. 12. 1991 while cheque dated 28. 9. 1991 for a sum of Rs. 1,13,016. 50 was dishonoured on 21. 12. 91 with the remark- amount not arranged. ( 3 ) NOTICE as required was sent by the complainant party to make payment within 15 days by registered post, but the accused did not make any payment. Meanwhile, those cheques were again presented to the bank but they were also dishonored with the same remarks. Thereafter, a complaint under section 138 of the Negotiable Instruments act was filed by the complainant, Subhash Bhan, against the accused persons. ( 4 ) THE Chief Judicial Magistrate after taking cognizance of the matter dismissed the complaint on the ground that demand notice was sent earlier to the date when those cheques were returned by the bank as unpaid. Therefore, for want of legal notice of 15 days the complaint filed under section 138 of the Negotiable Instruments Act was dismissed. ( 5 ) AGGRIEVED by the said order of the Court below the complainant filed this revision petition before this a Court. ( 6 ) A persual of the record shows that all these four cheques were dishonoured on 20. 11. 1991 with the remark money not arranged. It was after 20. 11. 91 that the registered notice was sent demanding payment within 15 days, but the amount was not paid. The offence was complete after lapse of 15 days notice. Representation of those cheques after the lapse of the notice period does not make any difference. 11. 1991 with the remark money not arranged. It was after 20. 11. 91 that the registered notice was sent demanding payment within 15 days, but the amount was not paid. The offence was complete after lapse of 15 days notice. Representation of those cheques after the lapse of the notice period does not make any difference. ( 7 ) A bare reading of clause (a) of section 138 of the Negotiable Instruments act clearly indicates that there is no restriction as to how many number of times a cheque can be presented to the bank. The cheque can be presented for a number of times within the period of its validity. ( 8 ) IN this case after dishonourment of the cheque on 20. 11. 1991 valid registered notice was sent to the accused persons to make payment within 15 days and after expiry of 15 days notice period the complaint was rightly filed on 2. 1. 1992. The plea taken by the Chief Judicial Magistrate while dismissing the complaint that the-notice was filed before dishonourment of the cheque is not based on law and it appears that the learned Chief Magistrate has mis-read the facts of the case and wrongly applied the law in the matter. Representation of the cheques second time, i. e. after issue of the notice, does not require that second notice should be sent. The cause of action had arisen when the first notice was sent after dishonourment of the cheques on 20. 11. 1991 and non payment of the said amount by the accused within 15 days, the complaint has been filed rightly within time, i. e. 2. 1. 1992. ( 9 ) THE presentation of the cheques for second time within the stipulated period of six months is not un-warranted and it cannot be said that second notice has to be sent after dishonourment of the cheque second time. If it is held to be so, the parties can save limitation by adopting this procedure which is not warranted by law. By sending notice after dishonourment of the cheques on 20. 11. 1991 and not making payment within 15 days has given cause of action to the complainant and he has rightly filed the complaint on 2. 1. 1992. The finding of the learned Chief Judicial Magistrate is perverse and has resulted in miscarriage of justice. By sending notice after dishonourment of the cheques on 20. 11. 1991 and not making payment within 15 days has given cause of action to the complainant and he has rightly filed the complaint on 2. 1. 1992. The finding of the learned Chief Judicial Magistrate is perverse and has resulted in miscarriage of justice. ( 10 ) THEREFORE, the present revision petition is allowed and the impugned order dated 16. 7. 1992 passed by the Chief Judicial Magistrate, Farrukhabad in Case No. 138 of 1992 dismissing the complainants complaint filed under section 138 of the Negotiable Instruments Act is set aside. The case records is directed to be sent back to the Chief Judicial Magistrate, Farrukhabad with direction to try the same in accordance with the provisions of law and the parties concerned are directed to appear before the Chief Judicial Magistrate concerned on 1. 9. 1995. Revision allowed. .