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2011 DIGILAW 2183 (RAJ)

Narendra Kumar v. Chandra Prakash

2011-10-13

SANDEEP MEHTA

body2011
JUDGMENT 1. - Heard learned counsel for the parties. 2. None has appeared on behalf of the respondent No. 2 though service has been effected. 3. Notice of the miscellaneous petition was issued by this Court and service has been effected. 4. By the instant miscellaneous petition, the petitioner has challenged the order dated 23.8.2005 passed by the Judicial Magistrate No. 8. Jodhpur in Criminal Case No. 753/2005, whereby the learned Magistrate took cognizance of the offence under Section 138 of the Negotiable Instruments Act against the petitioner and summoned him as an accused in the matter. 5. Assailing the proceedings and the order taking cognizance, learned counsel for the petitioner submits that in this case the proceedings against the petitioner cannot be sustained because the complaint has been filed on the basis of the second notice under Section 138 of the Negotiable Instruments Act. It has been submitted that in this case the cheque in issue was dated 1.6.2004 which was presented by the complainant-respondent in the bank in the month of June 2004 and on its bouncing, the bank of the complainant informed him that the cheque has been bounced and accordingly, a registered legal notice was issued on behalf of the complainant to the petitioner-accused through his counsel on 24.6.2004. A copy of the registered notice issued by the advocate of the complainant has been annexed to the petition. It has been submitted on behalf of the petitioner that the petitioner also gave a reply to the said legal notice through his counsel on 7.7.2004 and thereafter the complainant again presented the cheque to his bank in the month of September/October, 2004 and thereafter issued yet another notice to the petitioner in relation to bouncing of the cheque on 30.10.2004 and thus, on the basis of the second notice, the present complaint has been filed. 6. Assailing the proceedings as being barred by limitation learned counsel for the petitioner has submitted that the moment the first legal notice was issued by the complainant, the limitation for filing the complaint under Section 138 of the Negotiable Instruments Act started and if the complaint was not tiled on the basis of the first notice then the complaint filed subsequent thereto based on the second notice. would be barred by limitation. would be barred by limitation. Placing reliance on the decisions of the Hon'ble Supreme Court in the case of Sadanandan Bhadran v. Madhavan Sunil Kumar, AIR 1998 SC 3043 and Taneeshwar Vaishnava v. Rant Vishan Gupta, AIR 2010 SC 1209 :(2011 ACD 120) , it has been submitted that once the first notice under Section 138 of the Negotiable Instrunments Act was served then the cause of action arose to the complainant to file the complaint and subsequent notice could not give rise to a fresh cause of action. 7. I have considered the arguments advanced at the bar and perused the record of the case as also the documents filed along with the miscellaneous petition. 8. Undisputedly, from the documents filed along with the miscellaneous petition it becomes apparent that the complainant initially issued a legal notice to the petitioner which was served upon him and thereafter, instead of filing the complaint on the basis of the first notice. the complainant waited for a period of almost four months re-presented the cheque in his bank and issued a second notice and then has filed the present complaint. In the opinion of this Court once a notice has been issued to the person who issued the cheque and the same is served then the cause of action for the purpose of proceeding under Section 138 of the Negotiable Instruments Act arises and if, instead of filing a complaint on the basis of the first notice, the complainant had chosen to wait and gave another notice on the basis of presentation of the cheque for the second time in the bank then such complaint which has been filed in pursuance to the second notice, would be a time-barred complaint. 9. In the present case also, the situation is very much clear that the complainant initially issued a legal notice to the petitioner in the month of June 2004 and the petitioner gave reply thereto. Thereafter the complainant waited for four months and submitted the cheque again to his bank and on the basis of bouncing of the cheque for the second time, another notice was issued in the month of October 2004 and thereafter the present complaint has been filed on the basis of second notice. Thereafter the complainant waited for four months and submitted the cheque again to his bank and on the basis of bouncing of the cheque for the second time, another notice was issued in the month of October 2004 and thereafter the present complaint has been filed on the basis of second notice. Such a complaint is obviously barred by limitation provided under Section 138 of the Negotiable Instruments Act as held by the Hon'ble Apex Court in the two cases referred to supra. 10. Accordingly, the miscellaneous petition succeeds and is allowed. The impugned order 23.8.2005 passed by the learned Judicial Magistrate No. S. Jodhpur in Criminal Case No. 753/2005 taking cognizance against the petitioner and all proceedings subsequent thereto against the petitioner are hereby quashed.Petition allowed. *******