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Rajasthan High Court · body

2007 DIGILAW 2074 (RAJ)

Ram Pratap v. Maya Devi

2007-10-26

H.R.PANWAR

body2007
JUDGMENT 1. - Heard learned counsel for the parties. 2. Learned counsel for the petitioner submits that the instant misc. petition is squarely covered by the decision of the Hon'ble Supreme Court in Prem Chand Vijay Kumar v. Yashpal Singh & Anr., reported in 2005 Cr LR (SC) 476 , wherein the Apex Court held that once a notice under clause (b) of Section 138 of the Act is "received" by the drawer of the cheque, the payee or holder of the cheque forfeits his right to again present the cheque as cause of action has accrued when there was failure to pay the amount within the prescribed period and the period of limitation starts to run which cannot be stopped on any account. 3. The facts of the case giving rise to the instant misc. petition are that a cheque issued by the petitioner dated 15.7.2002 was sent to the Bank for encashment by the respondent, however, cheque on presented to the Bank for encashment, it was returned unpaid and dishonoured, thereafter of receipt of intimation from the Bank dishonouring of the cheque, the respondent-complainant issued a legal notice dated 13.8.2002 to the petitioner demanding cheque amount within 15 days from the date of receipt of the notice. The petitioner failed to pay the cheque amount within the statutory period of 15 days from the date of receipt of the notice. However, the respondent did not file the complaint within statutory period of one month therefrom and after about more than four months, again presented the cheque to the Bank for encashment, which was dishonoured on 7.1.2003. The respondent gave second legal notice dated 8.1.2003, demanding the cheque amount within 15 days from the receipt of notice, which on failure on the part of the petitioner to pay the cheque amount, filed a complaint on 19.2.2003. 4. The respondent gave second legal notice dated 8.1.2003, demanding the cheque amount within 15 days from the receipt of notice, which on failure on the part of the petitioner to pay the cheque amount, filed a complaint on 19.2.2003. 4. According to the learned counsel for the petitioner on failure on the part of the petitioner to pay the cheque amount within 15 days from the receipt of the notice dated 13.8.2002, the cause of action arose to the petitioner to file the complaint within statutory period of limitation, which the complainant did not file and after more than four months presented the cheque again to the Bank and on dishonouring of the cheque, gave second notice dated 8.1.2003 and thereafter filed the complaint, therefore, the complaint is barred by period of limitation and is bad in law. 5. Similar controversy is came to be decided by the Hon'ble Supreme Court in Prem Chand Vijay Kumar v. Yashpal Singh & Anr. (supra). The Hon'ble Supreme Court relying on the earlier decision in Sil Import, USA v. Exim Aides Silk Exporters, Bangalore, (1999) 4 SCC 567 , wherein the Apex Court held that the language used in Section 142 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 the cause of action. In other words, cause of action would arise soon after completion of the offence and period of limitation for filing of the application starts simultaneously running. While considering the provisions of Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') the Apex Court observed as under : "Clause (a) of the proviso to Section 138 does not put any embargo upon the payee to successively present a dishonoured cheque during the period of its validity. This apart, in the course of business transactions it is not uncommon for a cheque being returned due to insufficient funds or similar such reasons and being presented again by the payee after sometime, on his own volition or at the request of the drawer, in expectation that it would be en,cashed. This apart, in the course of business transactions it is not uncommon for a cheque being returned due to insufficient funds or similar such reasons and being presented again by the payee after sometime, on his own volition or at the request of the drawer, in expectation that it would be en,cashed. The primary interest of the payee is to get his money and not prosecution of the drawer, recourse to which, normally, is taken out of compulsion and not choice. On each presentation of the cheque and its dishonour, a fresh right and not a cause of action-accrues in his favour. He may, there,fore, 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." It was further held as under : "But once he gives a notice under clause (b) of Section 138, he forfeits such right in case of failure of the drawer to pay the money within the stipulated time, he would be liable for offence and the cause of action for filing the complaint will arise." 6. In my view, the controversy involved in the present case is squarely covered by the decision rendered in the case of Prem Chand Vijay Kumar (supra), therefore, the proceedings initiated against the petitioner under Section 138 of the Act is liable to be quashed. 7. In the result, the misc. petition is allowed and the proceedings in Criminal Original Case No. 373 of 2003 pending in the Court of Judicial Magistrate, First Class, Sadulshahar, District Sri Ganganagar is hereby quashed. *******