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2001 DIGILAW 1417 (AP)

Gundapuneni Vans v. Vulli Tulasi Narayana Gupta

2001-11-08

GOPALA KRISHNA TAMADA

body2001
GOPALA KRISHNA TAMADA, J. ( 1 ) THIS is a petition under Section 482 of the cr. P. C. , to quash the proceedings in CC no. 168 of 1998 on the file of the H Metropolitan magistrate, Visakhapatnam, registered for the alleged offence punishable under sec. 138 of the Negotiable Instruments Act. ( 2 ) THE averments in the petition are that the relationship between the complainant i. e. , the 1st respondent herein and the accused who is the petitioner herein is that of a landlord and tenant and in lieu of arrears of rent, the complainant issued a cheque bearing no. 0921121 dated 4-10-1997 for an amount 9frs. 28,000/-drawnonstatebankofpatiala, near Kotha Road, Visakhapatnam Branch. When it was presented on 24-10-1997, it was bounced with an endorsement dt. 25-10-1997 that there are no sufficient funds. ( 3 ) WHEN the cheque was presented again on 21-11-1997, it was again dishonored with the very same endorsement on 22-11-1997 and on that, a notice as contemplated under section 138 of the Negotiable Instruments act was issued on 4-12-1997 but the same was returned unserved. ( 4 ) AGAIN on 31-1-1998, the respondent herein presented the cheque with the hope that it would be honoured and again it was dishonoured on 3-2-1998 with an endorsement "insufficient funds". Within a period of 15 days, a notice as contemplated under Section 138 of the Negotiable instruments Act was issued on 12-2-1998 and the same was acknowledge by the petitioner herein. Inspite of notice being received, the petitioner has not made any payment and the respondent has, therefore, chosen to file a complaint under Section 138 of the Negotiable Instruments Act. ( 5 ) SRI A. Sreedhar, learned Counsel for the petitioner, strenuously contended that the proceedings initiated against the petitioner are nothing but an abuse of process of the Court as it is barred by limitation in view of the fact that the first notice was sent on 4-12-1997, on which date the cause of action arose, and it should have been presented within the period mentioned in section 138 of the Act. Learned Counsel for the petitioner has relied upon a judgment reported in Sadanandan Bhadran v. Madhavan sunil Kumar\ wherein their Lordships have taken the view that when once a notice requesting the payment is made, cause of action starts from the date when the notice was received by the accused. Learned Counsel for the petitioner has relied upon a judgment reported in Sadanandan Bhadran v. Madhavan sunil Kumar\ wherein their Lordships have taken the view that when once a notice requesting the payment is made, cause of action starts from the date when the notice was received by the accused. The relevant paragraphs of the said judgments are as follows:"5. The next question that falls for our determination is whether dishonour of the cheque on each occasion of its presentation gives rise to a fresh cause of action within the meaning of Sec. l42 (b) of the Act. Section 142 reads as under: 142. Notwithstanding anything contained in the Code of Criminal procedure, 1973 (2 of 1974), (a) no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date of which the cause of action arises under clause (c) of the proviso to Section 238; (c) no Court inferior to that of a metropolitan Magistrate or a Judicial magistrate of the first class shall try any of fence punishable under Sec. 138. From a plain reading of the above section, it is manifest that a competent Court can take cognizance of a written complaint of an offence under Section 138 if it is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. ( 6 ) IN a generic and wide sense (as in sec. 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. 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 debf /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 terms 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 (c) of the proviso to Section 138, the liability of the drawer for 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 (c) arises - and can arise - only once. ( 7 ) BESIDES the language of Sections 138 and 142 which clearly postulates only one cause of action, there are other formidable impeachments which negate the concept of successive causes of action. ( 7 ) BESIDES the language of Sections 138 and 142 which clearly postulates only one cause of action, there are other formidable impeachments which negate the concept of successive causes of action. One of them is that for dishonour of one cheque, there can be only one offence and such offence is committed by the drawer immediately on 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. " 6. From the above, it is clear that the payee is free to present the cheque repeatedly within its period of validity any number of times but once notice has been issued and payment is not received within 15 days from the date of receipt of the notice, he has to avail the cause of action arising thereupon and file the complaint within the period stipulated under Section 138 of the Act. 7. In the instant case though the notice was sent on 4-12-1997, it was never received by the petitioner herein and it was only the notice dated 12-2-1998 that was received by him and the same was received on the very same day. So when the notice dt. 4-12-1997 was not at all received by the petitioner, question of cause of action arising on that date or 15 days thereafter will not arise. It is only on 12-2-1998, on which date the notice was issued, and on 27-2-1998, i. e. , 15 days from the date of receipt of the notice, the cause of action arose and when 27-2-1998 is taken as the date of cause of action, the complaint is within the period of limitation as the complaint in the instant case is filed on 9-3-1998. Hence, I see no reason to quash the complaint. ( 8 ) IN the result, the criminal petition is dismissed.