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2012 DIGILAW 117 (ORI)

Pravakar Mohanty v. Prahallad Pradhan

2012-03-03

I.MAHANTY

body2012
JUDGMENT I. MAHANTY, J. – The present application under Section 482 Cr.P.C. has been filed by the petitioner (accused) challenging orders dated 18.2.2009 and 24.3.2009 passed in I.C.C. No.315 of 2008, whereby the learned S.D.J.M., Jagatsinghpur has been pleased to condone the delay in filing the complaint under Section 138 N.I. Act and had thereafter taken cognizance of an offence under Section 138 N.I. Act. 2. The essential contention of Sri A. Das, learned counsel for the petitioner is to the effect is that, whereas the petitioner has issued a cheque on 31.1.2008 in favour of the Complainant-Opposite Party, the complainant had presented the cheque for encashment on the selfsame date i.e., 31.01.2008 and received intimation of dishonour from the bank on 08.02.2008. It is further submitted that the complainant sent an advocate notice on 25.2.2008 which was returned to the sender with an endorsement "addressee always absent". It is further averred that on 10.3.2008, the complainant contacted the petitioner and he was given assurance that the cheque would be honoured if presented again and the complainant once again presented the same cheque for encashment on 28.05.2008, but the same was once again dishonoured and intimation of dishonour was received by the complainant on 11.6.2008. The complainant sent another advocate notice to the petitioner on 23.6.2008. Such advocate notice was received by the petitioner (accused) on 10.7.2008, which is the cause of action for initiating the complaint. 3. In the light of the aforesaid facts, learned counsel for the petitioner asserts that the Hon'ble Supreme Court in the case of Sadanandan Bhadran v. Madhavan Sunil Kumar, (1998) 6 SCC 514 had came to hold that, the cause of action to file a complaint on non-payment despite issue of notice arise only once, and another cause of action would not arise on the repeated dishonour cheque on re-presentation. 4. Learned counsel for the petitioner submitted that, whereas the opposite party was free to present the cheque repeatedly within its validity period, once notice had been issued on 25.2.2008 and payment was not received within 15 days of the said notice, the complainant had to avail the remedy by filing complaint, and that the present complaint not having been filed on the basis of the advocate notice dated 25.2.2008 but on the basis of second advocate notice dated 23.6.2008 entertaining the present complaint was wholly without jurisdiction. It is asserted by the learned counsel for the petitioner that, the cause of action in the present complaint arose on the petitioner not making payment within 15 days of the first advocate notice dated 25.2.2008 and while the payee-opposite party (complainant) was entitled to present the cheque for payment during its validity period, yet the said act on the part of the complainant would not give rise to a fresh cause of action. 5. In this respect, reliance was placed upon the judgment of the Hon'ble Supreme Court in the case of Tameeshwar Vaishnav v. Ramvishal Gupta, (2010) 45 OCR (SC) 555. 6. Sri Biswal, learned counsel for the complainant-opposite party, on the other hand, submitted that the plea advanced by the learned counsel for the petitioner is wholly misplaced. He further submitted that none of the judgments cited by the learned counsel for the petitioner apply to the facts of the present case. As would be evident from the pleadings of the parties, no doubt an advocate notice was issued to the petitioner on 25.2.2008 but the same had returned back to the complainant opposite party with an endorsement "addressee always absent". In view of such endorsement, it is asserted that no "cause of action" in fact arose since, admittedly, the said advocate notice had not been served on the petitioner. He further asserted that it is only the subsequent advocate notice dated 23.6.2008 which was served/received by the petitioner on 10.7.2008 and on non-payment by the petitioner within 15 days therefrom, only the cause of action arose for filing the present complaint and at no earlier point of time. In this respect, reliance was placed by the learned counsel for the opposite party-complainant on a judgment of the Hon'ble Supreme Court in the case of S.L Constructions and another v. Alapati Srinivasa Rao and another, (2009) 1. SCC 500. 7. In the light of the submission made by the learned counsel for the respective parties as noted hereinabove, the issues raised herein are no longer res integra. SCC 500. 7. In the light of the submission made by the learned counsel for the respective parties as noted hereinabove, the issues raised herein are no longer res integra. In the latest judgment of the Hon'ble Supreme Court in this respect in the case of Tameeshwar Vaishnav (supra), a Division Bench headed by Hon'ble Justice Altamas Kabir took into consideration of the earlier judgment of the Hon'ble Supreme Court in this respect including the case of S.L. Constructions (supra), and in Paragraphs 14 and 15 came to the following conclusion: "14. On careful scrutiny of the decision in S.L. Construction's case (supra), it would appear that the facts on the basis of which the said decision was rendered, were different from a case of mere presentation and dishonour of the cheque after issuance of notice under the proviso to Section 138 of the Act. While the decision in Sadanandan Bhadran's case (supra), clearly spells out that a cheque may be presented several times within the period of its validity, the cause of action for a complaint under Section 138 of the Act arises but once, with the issuance of notice after dishonour of the cheque and the receipt, thereof by the drawer. The same view has been reiterated in Prem Chand Vijay Kumar's case (supra). The only distinguishing feature of the decision in S.L. Construction's case (supra) is that of the three notices issued, the first two never reached the addressee. It is only after the third notice was received that the cause of action arose for filing the complaint. In effect, the cause of action for filing the complaint in the said case did not arise with the issuance of the first two notices since the same were never received by the addressee. 15. The provisions of Section 138 and clauses (a), (b) and (c) to the proviso thereof indicate that a cheque has to be presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. 15. The provisions of Section 138 and clauses (a), (b) and (c) to the proviso thereof indicate that a cheque has to be presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. Clause (b) indicates that the payee or the holder in due course of the cheque, has to make demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid and clause (c) provides that if the drawer of the cheque fails to make the payment of the said amount of money to the payee or to the holder in due course of the cheque within 15 days of receipt of the said notice the payee or the holder of the cheque may file a complaint under Section 142 of the Act in the manner prescribed." In the present case, it is clear that the first advocate notice dated 25.2.2008 was, admittedly, not received by the petitioner and the same was returned with the postal endorsement "addressee always absent". In view of such fact, since the first notice was never served on the petitioner nor received by him, no cause of action could have arisen with the return of the first Advocate notice nor do the said facts constitute any "deemed service of notice". In the present case, admittedly, it is only the second advocate notice issued to the petitioner on behalf bf the complainant on 23.06.2008 which was received by him on 10.7.2008 and the petitioner by not effecting payment within 15 days therefrom, cause of action could be said to have arisen and at no earlier point of time. 8. In view of the aforesaid finding, I find no irregularity either in the impugned order condoning delay or taking cognizance of the offence and accordingly, this Court is left with no other alternative other than to reject the prayer of the petitioner in the present case. Hence, the CRLMC stands dismissed. The interim order dated 11.12.2009 passed in Misc. Case No.3158 of 2009 stands vacated. CRLMC dismissed.