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2004 DIGILAW 72 (PNJ)

Avtar Singh v. Joginder Singh

2004-01-21

S.S.SARON

body2004
JUDGMENT S.S. Saron, J. - In this petition under Section 482 of the Code of Criminal Procedure, 1973 (Criminal Procedure Code for short), the petitioner seeks quashing of the complaint (Annexure P.1) titled Joginder Singh v. Avtar Singh, pending in the Court of learned Judicial Magistrate Ist Class, Ludhiana on the allegation that the petitioner committed an offence under Section 138 of the Negotiable Instruments Act, 1881 (NI Act for short). He also seeks the quashing of the summoning order dated 9.2.1991 (Annexure P.2) on the basis of which non- bailable warrants were later issued by the learned trial Magistrate. 2. Joginder Singh (respondent) filed a complaint under Section 138 of Negotiable Instruments Act on the allegations that the petitioner (accused) is a businessman and is well known to him. He had borrowed a sum of Rs. 19,500/- from the complainant for a period of seven days. The complainant in good faith paid the petitioner (accused) a sum of Rs. 19,500/- and the petitioner (accused) issued a cheque dated 14.2.1990 for the said amount drawn on his account with the Punjab National Bank, Ajit Nagar, Ambala. The said cheque of Rs. 19,500/- was presented to the bankers of the accused-petitioner through the bankers of the complainant, namely, Bank of India, Khatra Chuharam Branch, Ludhiana on 16.2.1990 and again on 14.3.1990. The cheque was returned by the bankers of the accused to the bankers of the complainant on 19.3.1990 with the remarks "referred to drawer." In this manner, the cheque in question was not honoured and it was alleged that the petitioner had committed an offence under Section 138 of Negotiable Instruments Act and was liable to be proceeded against and punished. 3. The learned Judicial Magistrate Ist Class, Ludhiana in terms of his order dated 9.2.1991 (Annexure P.2) summoned the accused for the said offence. This led to the filing of the present petition in this Court assailing the complaint (Annexure P.1) as also the summoning order dated 9.2.1991 (Annexure P.2). Non-bailable warrants had also been issued which are also assailed. 4. Dr. M.S. Rahi, learned counsel appearing for the petitioner has contended that the cheque in question was initially presented on 15.2.1990 and no complaint was filed. The said cheque was again presented on 14.3.1990 and thereafter the complaint was filed on 28.4.1990. Non-bailable warrants had also been issued which are also assailed. 4. Dr. M.S. Rahi, learned counsel appearing for the petitioner has contended that the cheque in question was initially presented on 15.2.1990 and no complaint was filed. The said cheque was again presented on 14.3.1990 and thereafter the complaint was filed on 28.4.1990. Thus, according to the learned counsel, the second dishonouring of the cheque did not furnish another cause of action to the complainant as more than one cause of action on the dishonour of the same cheque is not contemplated by the provisions of Section 138 of the Negotiable Instruments Act. 5. In response, Shri Gurcharan Dass, learned counsel appearing for the respondent has contended that the contention as urged by the petitioner is not sustainable in view of the dictum of the Apex Court in M/s Uniplas India Ltd. v. State (Govt. of NCT of Delhi), 2001(3) Recent Criminal Cases 293 as also in R.S. Traders v. Rita Khanna, 1997(2) RCR(Crl.) 736. 6. I have given my thoughtful consideration to the respective contentions of the learned counsel appearing for the parties. As per allegations in the complaint (Annexure P.1), the petitioner (accused) issued a cheque for Rs. 19,500/- dated 14.2.1990 for a sum of Rs. 19,500/-. The said cheque was presented through the bankers fo the respondent on 16.2.1990 and it was not honoured. No notice as required by the proviso (b) to Section 138 of the Negotiable Instruments Act was given. The cheque, however, was again presented on 14.3.1990 and it was again not honoured. Thereafter, the respondent (complainant) issued a notice dated 27.3.1990 under registered cover and demanded payment within 15 days of receiving the notice. The question, therefore, that is to be seen is as to whether where a complainant did not file a complaint on the initial dishonour of the cheque, would he be entitled to maintain one on the subsequent dishonour of the cheque. 7. This question is not res integra. In M/s Uniplas India Ltd. v. State (Govt. of NCT of Delhi) (supra), the Honble Supreme Court considered this very question and observed as follows :- "One of the indispensable factors to form the cause of action envisaged in Section 138 of the Negotiable Instruments Act is contained in clause (b) of the proviso to that section. In M/s Uniplas India Ltd. v. State (Govt. of NCT of Delhi) (supra), the Honble Supreme Court considered this very question and observed as follows :- "One of the indispensable factors to form the cause of action envisaged in Section 138 of the Negotiable Instruments Act is contained in clause (b) of the proviso to that section. It involves the making of a demand by giving a notice in writing to the drawer of the cheque "within fifteen days of receipt of information by him from the bank regarding the return of the cheque as unpaid." If no such notice is given within the said period of 15 days, no cause of action could have been created at all. Thus, it is well neigh settled that if dishonour of a cheque has once snowballed into a cause of action it is not permissible for a payee to create another cause of action with the same cheque. The question in this case is, did the payee issue notice within 15 days after the first dishonour of the cheque. The question can as well be put in another form. Was the notice dated 1.12.1995 within 15 days of the date of intimation from the bank regarding dishonour or was it sent after that period of 15 days ? I fact, that is the crux of the issue involved in this case. Appellants have not stated that the interval between the date of the earlier dishonour of the cheque and the notice dated 1.12.1995 did not exceed the statutory period of 15 days. To a query by us learned counsel for the appellants candidly admitted that the notice of 1.12.1995 was issued only after the expiry of 15 days from receipt of the intimation from Bank regarding the dishonour. If so the said dishonour remained without any further escalation and need to snowball into a cause of action. Its corollary is that the payee was not prevented from presenting the cheque once again within the permitted period and to make use of such presentation and the subsequent dishonour for a cause of action to be founded for launching a complaint as in the present case. We therefore dismiss this appeal." 8. The above observations of the Honble Supreme Court fully apply to the facts of the case in hand. No notice was issued after the first dishonour of the cheque on 16.2.1990. We therefore dismiss this appeal." 8. The above observations of the Honble Supreme Court fully apply to the facts of the case in hand. No notice was issued after the first dishonour of the cheque on 16.2.1990. It is after the second dishonour of the cheque on 19.3.1990 that a notice dated 27.3.1990 of demand was issued. This second notice in terms of the above dictum gave a cause of action to the complainant in terms of clause (c) to the proviso to Section 138 of the Negotiable Instruments Act. Besides, in M/s R.S. Traders v. Rita Khanna (supra) also the Honble Supreme Court held that where the cheque is repeatedly dishonoured within a validity period of six months and the complaint filed on the basis of cause of action of last dishonour within time, the holder of the cheque was not debarred from invoking the provisions of Section 138 of Negotiable Instruments Act. 9. In view of the above there is no merit in the contention of the learned counsel for the petitioner and consequently, the petition is dismissed. The parties through their counsel are directed to appear before the learned trial Court on 2.3.2004 and the learned trial Magistrate shall proceed to dispose of the case expeditiously. Petition dismissed.