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2011 DIGILAW 2780 (RAJ)

Sudheer Kumar v. Mahendra Kumar Agarwal

2011-12-16

NISHA GUPTA

body2011
JUDGMENT : Nisha Gupta, J. This misc. petition under Section 482 Criminal Procedure Code has been preferred against the order dated 10.5.2007 whereby cognizance has been taken against the present petitioner for the offence under Section 138 of the Negotiable Instruments Act in violation of statutory provisions contained in Section 138(C) and 142(B) of the Act and application filed by the petitioner for recalling the impugned order was also dismissed and hence this petition filed for quashing the whole proceedings. 2. The facts as stated in the petition are that the petitioner gave six blank cheques to the complainant, which were misused by the complainant. The complainant presented the cheque bearing No. 155083 to 155088 dated 29.5.2001 before the Jaipur Central Cooperative Bank, which was dishonoured with the remark "insufficient fund". On 13.6.2001, the complainant issued a legal notice to the petitioner to make payment of cheque amount and again these cheques were presented to before the bank and same were dishonoured with the remark "insufficient fund" on 22.11.2001 for which again the complainant issued legal notice to the petitioner on 5.12.2001. The complainant-respondent did not file any complaint after the expiry of statutory period prescribed under Section 138(B) and 138(C) and Section 142 of the Act and time barred cognizance has been taken by the Magistrate and hence this petition. 3. The only contention of the present petitioner is that once notice has been given to the present petitioner on 13.6.2001, second notice could not give any fresh cause of action. 4. It is well settled position that once the period of limitation starts to run, it cannot be stopped for any reason and Section 142(B) of the Act specifically provides that the complaint should be made within one month of the arising of cause of action and in the present case, cause of action arose when the first notice was given on 13.6.2001. Hence, second notice did not give any fresh cause of action. Learned counsel for the petitioner has relied upon the judgment delivered in the case of Prem Chand Vijay Kumar vs. Yashpal Singh & Anr., (2005) 4 SCC 417 : 2006 (1) NIJ 121 (SC), and it was held by the Hon'ble Apex Court as under : "8. Hence, second notice did not give any fresh cause of action. Learned counsel for the petitioner has relied upon the judgment delivered in the case of Prem Chand Vijay Kumar vs. Yashpal Singh & Anr., (2005) 4 SCC 417 : 2006 (1) NIJ 121 (SC), and it was held by the Hon'ble Apex Court as under : "8. Clause (a) of the proviso to Section 138 does not put any embargo upon the payee to successfully 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 some time, on his own volition or at the request of the drawer, in expectation that it would be encashed. 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 that and not a cause of action accrues in his favour. He may, therefore, without taking preemptory action in exercise of his such right under clause (b) of Section 138, go to presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. 9. But once he given a notice under clause (b) of Section 138, he forfeits such right as 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. 10. In a generic and wide sense (as in Section 20 of the Civil Procedure Code, 1989 (in short "Civil Procedure Code") "cause of action" means every fact which it is necessary to establish to support a right or obtain a judgment. 10. In a generic and wide sense (as in Section 20 of the Civil Procedure Code, 1989 (in short "Civil Procedure Code") "cause of action" means every fact which it is necessary to establish to support a right or obtain a judgment. Viewed in that context, the following facts are required to be proved to successfully prosecute the drawer for an offence under Section 138 of the Act: (a) that the cheque was drawn for payment of an amount of money for discharge of a debit/liability and the cheque was dishonoured; (b) that the cheque was presented within the prescribed period; (c) that the payee made a demand for payment of the money by giving a notice in writing to the drawre within the stipulated period; and (d) that the drawer failed to make the payment within 15 days of the receipt of the notice. Proceeding on the basis of the generic meaning of the term "cause of action", certainly each of the above facts would constitute a part of the cause of action but clause (b) of Section 142 gives it a restrictive meaning, in that, it refers to only one fact which will give rise to the cause of action and that is the failure to make the payment within 15 days from the date of the receipt of the notice. A combined reading of Sections 138 and 142 makes it clear that cause of action is to be reckoned accordingly. The combined reading of the above two Sections of the Act leaves no room for doubt that cause of action within the meaning of Section 142(b) arise-and can arise-only once. 11. 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. 12. As noted Sadanandan Bhadran case 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 of limitation starts to run which cannot be stopped on any account. 13. 13. One of the indispensable factors to form the cause of action envisaged in Section 138 of the 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 the 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. 14. Thus, it is well 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 acti with the same cheque." 5. Looking at the above that the complainant has given the notice to the prese petitioner on 13.6.2001, the cause of action will arise and the complainants, which were filed after the expiry of limitation provided under Section 142(b) of the Act is permissible to continue. 6. In view of the above, this petition is liable to be allowed and is allowed and t proceedings in the Criminal Complaint Case No. 102 of 2002 pending before the Judicial Magistrate No. 7, Jaipur are hereby quashed. Petition allowed.