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Madhya Pradesh High Court · body

2000 DIGILAW 823 (MP)

Govind Khandelwal v. R. S. Somani

2000-08-14

A.K.GOHIL

body2000
This is a revision petition filed by the applicant/accused under Section 397 read with Section 401 of the Code of Criminal Procedure against the order passed by the learned First Additional Sessions Judge, Indore in Criminal Revision No. 367 of 1999 whereby allowed the revision and remanded the case to the trial Court to record the evidence of the parties and thereafter decide whether the complaint has been filed in time or not and whether the complaint is maintainable or not. The facts of the case, in brief, are that the Respondent R.S. Somani filed a criminal complaint before the trial Court against this applicant/accused under Section 138 of the Negotiable Instruments Act, 1881 read with Section 420 IPC alleging therein that for the payment of the amount of Rs. 20,0001- the applicant issued a Cheque No. 562027 dated 28.9.1997 of Canara Bank, Siyaganj, Indore. The aforesaid cheque was presented for encashment but the same was dishonoured on the ground of "insufficient funds". The intimation of this was given to the applicant on 4.10.1997. Thereafter the applicant stated that the cheque be presented again for encashment. The Respondent/Complainant believing on the version of the applicant presented the cheque again in the bank but the same was again dishonoured and thereafter a Bank notice was issued on 8.12.1997 and he filed the complaint on 2.1.1998. The learned trial Court rejected the application as barred by limitation on the ground that the same was not filed within the period prescribed under the Act on the basis of the first dishonour of cheque. Against which the Complainant/Respondent filed a criminal revision before the First Additional Sessions Judge. By order dated 11.1.2000 the learned Sessions Judge allowed the revision and remanded the case for recording the evidence of the parties and to decide the case on merits. Being aggrieved by the order, the applicant/accused filed this revision. I have heard the learned counsel for the parties and perused the record. The submission of the learned counsel for the applicant is that in view of the decision in the case of Sadanandan Bhadran v. Madhavan Sunil Kumar, reported in 1998 Supreme Court Cases (Cri.) 1471, the complaint cannot be filed and is not maintainable on second cause of action. It has been held in the case of Sadanundan Bhadraf/(supra) as under :- "Now. It has been held in the case of Sadanundan Bhadraf/(supra) as under :- "Now. the question is how the apparently conflicting provisions of the Act, one enabling the payee to repeatedly present the cheque and the other giving his only one opportunity to file a complaint for its dishonour, and that too, within one month from the date of cause of action arises, can be reconciled. Having given our anxious consideration to this question, we are of the opinion that the above two provisions can be harmonised, with the interpretation that on each presentation of the cheque and its dishonour, a fresh right - and no cause of action - accrues in his favour. He may, therefore, without taking pre-emptory action in exercise of his such right under clause (b) of Section) 138, go on presenting the cheque so as to enahle him to exercise such right at any point of time during the validity of the cheque. But once he gives a notice under clause of Section 138, he forfeits such right for in case of failure of the drawer to pay the money within the stipulated time he would. beliable for offence and the cause of action for filing the complaint will arise. Needless to say, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of fifteen days from the date of the receipt of the notice by the drawer expires." In this case it is admitted position of record that on earlier occasion when cheque was dishonoured the Non-applicant gave notice to the applicant on 4. 10.1997 for payment of money as the cheque was dishonoured, but on the request of the applicant himself the Non-applicant presented the cheque again in the bank. There is no dispute about the position of these facts, therefore, in view of the decision in the case of Sadanandan Bhadran (supra) and facts on record, nothing is required to be enquired by the trial Court as per the direction of the revisional Court because it is admitted that on first notice he has not filed any complaint. This complaint has been filed on 2nd notice. This complaint has been filed on 2nd notice. In view of the aforesaid decision of the Supreme Court, the order of the revisional Court to allow revision and remanded the case for recording evidence is absolutely against the decision of Supreme Court cited above. Therefore, the order of the revisional Court is devoid of merits. Consequently this revision is allowed and the impugned order passed by the revisional Court on 11.1.2000 is hereby set-aside and the order of magistrate is upheld. Record be returned immediately.