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2002 DIGILAW 654 (KAR)

N. G. SOMASHEKAR v. S. V. SHIVAPRASAD

2002-10-23

S.R.BANNURMATH

body2002
S. R. BANNURMATH, J. ( 1 ) HEARD the learned Counsel for the appellant. ( 2 ) THIS appeal is filed by the complaint challenging the judgment of acquittal dated 12-8-2002 passed by the learned JMFC. , Chintamani, in C. C. No. 219/1996 acquitting the respondent for the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act ). ( 3 ) THE present complaint under consideration has been filed on 12-12-1996 for the alleged offence committed by the respondent under the provisions of Section 138 of the Act. According to the complainant in respect of certain monetary transaction the respondent had issued two cheques dated 5-7-1996 and 9-7-1996 which when presented came to be dishonoured by the bank for insufficiency of fund on 9-7-1996. It is also not in dispute that immediately after dishonour of the cheques, the petitioner had issued a notice to the respondent on 12-7-1996 to which a reply was given by the respondent on 12-7-1996 to which a reply was given by the respondent on 30-7-1996. It is further alleged that as per the reply - Ex P. 10, respondent had sought for some more time till 7-11-1996 to make good the payment and on his promise complainant waited till 8-11-1996, the cheques were again presented to the bank on that day, which came to be returned again dishonoured from the bank on 11-11-1996. Thereafter another notice came to be issued to the respondent on 11-11-1996 and when there was no payment, the present complaint was filed. ( 4 ) THE trial Court on considering the evidence on both sides mainly relying upon the pronouncement of the Apex Court in the case of Sadanandan Bhadran v. Madhavan Sunil Kumar, AIR 1998 SC 3043 and decision of Division Bench of this Court in the case of Y. Krishnamurthy v. Sharanappa (ILR 1998 Kant 333) held that as the petitioner has exercised his pre-emptory right of issuing notice on 12-7-1996, the cause of action and the limitation to file the complaint starts operative and in that event since the complaint for the offence under Section 138 of the Act ought to have been filed within 45 days from the date of reply to the first notice i. e. , 45 days from 30-7-1996. Admittedly as the complaint was filed on 12-12-1996, the trial Court held that the complaint is barred by limitation. Admittedly as the complaint was filed on 12-12-1996, the trial Court held that the complaint is barred by limitation. It is this judgment which is challenged before this Court. ( 5 ) SRI Radha Krishna, learned Counsel for the petitioner, contended that though there is no dispute regarding the proposition of law laid down by the Hon'ble Supreme Court as well as the Division Bench of this Court, as the facts in the present case are distinguishable from those in the reported cases, the finding arrived at by the trial Court is erroneous and illegal one. It is contended that in the case before the Hon'ble Supreme Court or in the case before the Division Bench in Y. Krishna Murthy's case, there was no extension sought by the respondent for making payment and as such both the Courts have held that after issuance of first notice, the cause of action starts running against the complainant; whereas in the present case, it is submitted that as is admitted and clear from Ex. P. 10, by the reply to the notice issued from the petitioner, the respondent himself had sought for time to discharge the loan by 7-11-1996 and in fact had given liberty to the petitioner to present the cheques after that period is over; and hence it is contended that there was nothing wrong in the petitioner presenting the cheques second time and issuing notice on report of insufficiency of fund by the bank second time also. ( 6 ) SOFAR as the limitation and starting point of cause of action is concerned, it cannot be disputed that it does not stop working merely the other side has given concession rightly or wrongly. As laid down by the Apex Court in the case of Sil Import, USA v. M/s. Exim Aides Silk Exporters, Bangalore ( AIR 1999 SC 1609 ). "the language used in the above Section admits of no doubt that the magistrate is forbidden from taking cognizance of the offence if the complaint was not filed within one month of the date on which the cause of action arose. Completion of the offence is the immediate forerunner of rising of cause of action, in other words cause of action would arise soon after completion of the offence, and the period of limitation for filing the complaint would simultaneously start running. Completion of the offence is the immediate forerunner of rising of cause of action, in other words cause of action would arise soon after completion of the offence, and the period of limitation for filing the complaint would simultaneously start running. " (Emphasis supplied) ( 7 ) EVEN in the case of Y Krishnamurthy a Division Bench of this Court has observed thus :-"the payee or the endorse of the cheque, therefore, has the liberty to present the cheque as many times as he likes within the period of 6 months but once he serves a notice upon the drawer, the cause of action shall be deemed to have commenced and the period of limitation started to run. It is acknowledged position under law that once the period of limitation starts to run it cannot stop for any reason. The cause of action under the sections, for the purposes of filing the complaint cannot be presumed to arise merely on the cheque being dishonoured but shall be deemed to have arisen after giving the notice of demand of the amount of the cheque by payee or holder in due course of the cheque coupled with the failure of the drawer to make the payment within 15 days of the date of service/receipt of notice. A complaint for the alleged commission of offence under Section 138 of the Act is, therefore, required to be filed within one month from the date of the cause of action which starts from expiry of 15 days from the date of service of notice to the drawer. From the scheme of Chapter XVII of the Act it transpires that the Legislature had not contemplated of more than one cause of action on the same cheque. Though successive presentations of the cheque are permissible under law yet successive notices for the purpose of determining the cause of action are not conceived. Legislature cannot be imputed to have intended to subject a transfer of a negotiable instrument to repealed prosecutions and convictions on the strength of one document. Though successive presentations of the cheque are permissible under law yet successive notices for the purpose of determining the cause of action are not conceived. Legislature cannot be imputed to have intended to subject a transfer of a negotiable instrument to repealed prosecutions and convictions on the strength of one document. " (Emphasis by me) ( 8 ) IN fact this view has been practically affirmed by the Apex Court in Sadanandan Bhadran v. Madhavan Sunil Kumar ( AIR 1998 SC 3043 ) by stating that "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 not 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 enable him to exercise such right at any point of time during the validity of the cheque. But, once he gives a notice under Clause (b) 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 be liable for the 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". (Emphasis by me) ( 9 ) THUS on going through the pronouncements referred to above, I am unable to accept the contention of the learned Counsel for the appellant that as the respondent himself had given concession of representing the cheques, cause of action stops working and petitioner can filed a complaint thereafter at any point of time. In my view, in the light of the aforesaid pronouncements, law of limitation cannot stop running once the clock starts ticking even if the drawn of the cheque requests for some more time for payment. ( 10 ) HENCE, I see no merit inasmuch as the trial Court has in fact considered this aspect in detail and has passed just and proper order. ( 11 ) APPEAL is rejected accordingly. Appeal dismissed. --- *** --- .