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2005 DIGILAW 309 (PNJ)

Delhi Cloth Store v. Ahuja Traders

2005-02-25

M.M.AGGARWAL

body2005
Judgment 1. This appeal had been filed by the complainant against acquittal of the accused-respondent for offence under Sec.138 of the Negotiable instruments Act (for short the act). 2. Leave to appeal had been granted in this case. 3. The facts of the case are that appellant-complainant had filed a complaint for offence under Sec.138 of the Act since a cheque dated 12.11.1996 issued by the accused for an amount of (sic) was dishonoured.3. A notice dated 15.11.1996 had been issued under Sec.138 of the Act. The cheque was again presented which was again dishonoured and then notice dated 3.12.1996 was issued. The complaint was filed on 23.12.1996. However, it was dismissed vide judgment dated 8.11.2001 by the Court of Sub-Divisional Judicial Magistrate, Rajpura holding that complaint on the presentation of the cheque second time and notice issued on that basis, was not maintainable. 4. Counsel for the appellant in this case had argued that cheque could be presented any number of times during its validity period. It was further argued that cheque dated 12.11.1996 was dishonoured and notice on 15.11.1996 was issued. The cheque was presented again and it was dishonoured and thereafter notice dated 3.12.1996 was issued. It was pointed out that complaint was filed on 23.12.1996 and even if the cheque could not be presented second time and second notice could not be issued, still the limitation after issuing first notice shall start from 30.11.1996 and complaint could be filed by 30.12.1996 and, therefore, the complaint was maintainable. 5. Counsel for the appellant had relied on a judgment of Madhya pradesh High Court reported as Premlata Chaddha V/s. Surendra Kumar soni, 1998 (4) RCR (Cri) 725. 6. On the other hand, cousin for the respondents had relied on a judgment of the Honble Supreme Court reported as Sadanandan Bhadran V/s. Madhavan Sunil Kumar, VII (1998) SLT 157; M/s. Uniplas India Ltd. V/s. State, V (2001) SLT 272; Andhra Pradesh High Court judgment reported as M/s. V. V. Circuits Limited V/s. State of A. P. , 2000 (3) RCR (Cri) 607 and madras High Court Judgment reported as Mathias Packaging Ltd. V/s. Hindalco Industries Ltd. , 2001 (2) RCR (Cri) 222. 7. In the present case, the cause of action under proviso to Clause (c)of Sec.138 of the Act would have been there after 15 days of the expiry of notice which had been issued on 15.11.1996. 7. In the present case, the cause of action under proviso to Clause (c)of Sec.138 of the Act would have been there after 15 days of the expiry of notice which had been issued on 15.11.1996. In the complaint filed on behalf of the appellant-complainant, the cause of action pleaded and averred was from the date of issuing of second notice in view of the dishonour of the cheque when it was presented second time. The complaint was not filed on the basis of cause of action which had arisen under proviso to Clause (c) of Sec.138 of the Act when cheque was dishonoured for the first time and notice issued. Even if the complaint was within limitation from this first of action, still when this cause of action was not pleaded and it came out only during defence, then it cannot be said that the complaint filed by the present appellant was maintainable on the basis of presentation of cheque second time and issuing of notice on dishonour of that cheque. Under these circumstances, I do not find any infirmity in the judgment of the Trial Court. No merit. Dismissed.