ORDER The petitioner herein has challenged the proceedings in S.T.C.No.156 on the file of the learned Judicial magistrate No.4, Tirunelveli under Section 138 of the Negotiable Instrument Act. 2. The learned counsel for the petitioner would submit that the petitioner has obtained the cheque dated 01.12.2013 for a sum of Rs.23,04,504/-, which was represented on 03.12.2013 and it was returned as insufficient funds. But, without intimating the same, the respondent once again represented the cheque for encashment on 07.02.2014, which was also returned as insufficient funds and then only, he issued notice under Section 138(b) of the Negotiable Instrument Act and hence, the second presentation before the bank is barred. For the said reason, he relied on the decision in Sil Import, USA Vs. Exim Aides Silk Exporters, Bangalored reported in (1999) 4 SCC 567 and another decision in M/s. Devi Packaging Industries, Chennai and Etc. Vs. M/s. Bazargaon Paper & Pulp Mills Pvt. Ltd., Nagpur reported in 2010(1) TNLR 36 (Bom). He would further submit that the fact of presentation of the cheque at the first time on 03.12.2013 has not been mentioned in the statutory notice as well as the complaint and it would amount to suppression of material fact. He would further submit the cheque has been issued for obtaining housing loan and that has been utilised by the complainant and hence, it is hit by Section 58 of the Negotiable Instrument Act and hence, he prayed for quashing the proceedings. 3. Resisting the same, the learned counsel for the respondent would submit that within the time stipulated under Section 138 of the Negotiable Instrument Act, the cheque can be presented any number of time. Once the cheque was returned and if notice has been issued, then only cause of action has been arisen. Here, the cheque has been presented on 03.12.2013 and it was returned on the date itself, but no notice has been issued and hence, on that date, no cause of action has been arisen. Only on 07.02.2014, the same has been represented and notice has been issued and then only, the cause of action has been arisen and subsequently, the complaint has been filed and hence, it is not barred by limitation and there is no suppression of material fact. 4. Only on 07.02.2014, the same has been represented and notice has been issued and then only, the cause of action has been arisen and subsequently, the complaint has been filed and hence, it is not barred by limitation and there is no suppression of material fact. 4. He would further submit that the question as to whether the cheque has been issued for legally purpose is only a question of fact and that can be decided at the time of trial and hence he prayed for dismissal of the application. 5. I have considered the submissions made on either side and perused the entire materials available on record. 6. It is pertinent to note that both the petitioner and the respondent are own brother and sister. The respondent herein has filed the complaint for the offence under section 138 of the Negotiable Instrument Act stating that his sister borrowed money for a sum of Rs.23,04,504/- from the complainant/respondent on 25.10.2013 with an undertaking that she would return the same within two months. Since, she has not repaid the same, on demand, she issued a cheque for the same and that has been presented for encashment, which was returned as insufficient funds and subsequently, the same was represented on 07.02.2014 and it was returned as insufficient funds and hence, after issuing statutory notice, the complaint has been preferred. 7. Now, the point to be decided is as to whether the case has been barred by limitation. In the provision of Section 138 of the Negotiable Instrument Act, it is specifically mentioned that the cheque has to be presented in the bank any number of times within the period of six months or during the period of its validity, whichever is earlier, followed by a notice within the meaning of clause (b) of the proviso to Section 138 of the Negotiable Instrument Act. Once it was followed by the notice, then only, cause of action would be arisen. 8. It is appropriate to consider the decision relied on by the learned counsel for the respondent in MSR Leathers Vs. S.Palaniappan and another reported in (2013)1 Supreme Court Cases 177, wherein, it was specifically mentioned in para 22 and 24 as follows: “22. Once it was followed by the notice, then only, cause of action would be arisen. 8. It is appropriate to consider the decision relied on by the learned counsel for the respondent in MSR Leathers Vs. S.Palaniappan and another reported in (2013)1 Supreme Court Cases 177, wherein, it was specifically mentioned in para 22 and 24 as follows: “22. The expression “cause of action” appearing in Section 142(b) of the Act cannot therefore be understood to be limited to any given requirement out of the three requirements that are mandatory for launching a prosecution on the basis of a dishonoured cheque. Having said that, every time a cheque is presented in the manner and within the time stipulated under the proviso to Section 138 followed by a notice within the meaning of clause (b) of the proviso to Section 138 and the drawer fails to make the payment of the amount within the stipulated period of fifteen days after the date of receipt of such notice, a cause of action accrues to the holder of the cheque to institute proceedings for the prosecution of the drawer. 23....... 24. That brings us to the question whether an offence punishable under Section 138 can be committed only once as held by this Court in Sadanandan Bhadran's case (supra). The holder of a cheque as seen earlier can present it before a bank any number of times within the period of six months or during the period of its validity, whichever is earlier. This right of the holder to present the cheque for encashment carries with it a corresponding obligation on the part of the drawer to ensure that the cheque drawn by him is honoured by the bank who stands in the capacity of an agent of the drawer vis-à-vis the holder of the cheque. If the holder of the cheque has a right, as indeed is in the unanimous opinion expressed in the decisions on the subject, there is no reason why the corresponding obligation of the drawer should also not continue every time the cheque is presented for encashment if it satisfies the requirements stipulated in that clause (a) to the proviso to Section 138. There is nothing in that proviso to even remotely suggest that clause (a) would have no application to a cheque presented for the second time if the same has already been dishonoured once. There is nothing in that proviso to even remotely suggest that clause (a) would have no application to a cheque presented for the second time if the same has already been dishonoured once. Indeed if the legislative intent was to restrict prosecution only to cases arising out of the first dishonour of a cheque nothing prevented it from stipulating so in clause (a) itself. In the absence of any such provision a dishonour whether based on a second or any successive presentation of a cheque for encashment would be a dishonour within the meaning of Section 138 and clause (a) to proviso thereof. We have, therefore, no manner of doubt that so long as the cheque remains unpaid it is the continuing obligation of the drawer to make good the same by either arranging the funds in the account on which the cheque is drawn or liquidating the liability otherwise. It is true that a dishonour of the cheque can be made a basis for prosecution of the offender but once, but that is far from saying that the holder of the cheque does not have the discretion to choose out of several such defaults, one default, on which to launch such a prosecution. The omission or the failure of the holder to institute prosecution does not, therefore, give any immunity to the drawer so long as the cheque is dishonoured within its validity period and the conditions precedent for prosecution in terms of the proviso to Section 138 are satisfied. ” Therefore, the argument advanced by the learned counsel for the petitioner that since the cheque was presented on 03.12.2013 and it was returned on that date itself, the cause of action has been arisen does not merit acceptance.” 9. It is appropriate to consider the decision relied on by the learned counsel for the petitioner in Sil Import, USA Vs. Exim Aides Silk Exporters, Bangalored reported in (1999) 4 SCC 567 . In the said citation, it was specifically mentioned that limitation period for filing the complaint under Section 142 of the Negotiable Instrument commences, as the notice under Section 138 proviso (b) was given more than once. Here, admittedly, no notice has been given, since the cheque has been dishonoured as insufficient funds on 03.12.2013. Hence, this citation is not applicable to the facts of the present case. 10. Here, admittedly, no notice has been given, since the cheque has been dishonoured as insufficient funds on 03.12.2013. Hence, this citation is not applicable to the facts of the present case. 10. For the sake of convenience, the learned counsel has taken me to the paragraph 7 of the judgment, wherein, it is held as follows: “The language used in the above section 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 cause of action. In other words cause of action would arise soon after completion of the offence, and the period of limitation for filing the complaint would simultaneously start running”. But, perusal of the same, I am of the opinion that the said judgment is only supporting the respondent and not the petitioner. 11. He also relied on the decision in M/s. Devi Packaging Industries, Chennai and Etc. Vs. M/s. Bazargaon Paper & Pulp Mills Pvt. Ltd., Nagpur reported in 2010(1) TNLR 36 (Bom).. It is appropriate to incorporate para 6 of the judgment, which reads as follows: “6. The learned counsel for the original complainant, relying on a judgment of the Supreme Court in S.L.Construction & Anr. V. Alapati Srinivasa Rao and another, reported at 2008(15) Scale 308 :2009 AIR SCW 1044, submitted that a complaint could be filed after failure of the accused to comply with the last notice. I have carefully gone through the judgment which also considers earlier judgment of the Supreme Court in Sadanand Bhadran V. Madhavan Sunil Kumar, reported at 1998 (6) SCC 514 : AIR 1998 SC 3043 , where the Court had held in paras 7 and 8 of the judgment as under: 7. Besides the language of Sections 138 and 142, which clearly postulates only one cause of action there are other formidable impediments which negate the concept of successive causes of action. One of them is that for dishonour of one cheque, there can be only one offence and such offence is committed by the drawer immediately on his failure to make the payment within fifteen days of the receipt of the notice served in accordance with clause (b) of the proviso to Section 138. One of them is that for dishonour of one cheque, there can be only one offence and such offence is committed by the drawer immediately on his failure to make the payment within fifteen days of the receipt of the notice served in accordance with clause (b) of the proviso to Section 138. That necessarily means that for similar failure after service of fresh notice on subsequent dishonour the drawer cannot be liable for any offence nor can the first offence be treated as non-est so as to give the payee a right to file a complaint treating the second offence as the first one. At that stage it will not be a question of waiver of the right of the payee to prosecute the drawer but of absolution of the drawer of an offence which stands already committed by him and which cannot be committed by him again. 8. The other impediment to the acceptance of the concept of successive causes of action is that it will make the period of limitation under clause © of Section 142, otiose, for, a payee who failed to file his compliant within one month and thereby forfeited his right to prosecute the drawer can circumvent the above limitative clause by filing a complaint on the basis of a fresh representation of the cheque and its dishonour. Since in the interpretation of statutes, the Court always presumes that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part should have effect the above conclusion cannot be drawn for that will make the provision for limiting the period of making the complaint nugatory.” In S.L.Construction, the Supreme Court did not hold that the decision in Sadanand Bhadran V. Madhavan Sunil Kumar, AIR 1998 SC 3043 , needed to be interpreted in different fashion. It held, as a matter of fact in para 30 of the judgment as under: “30.In this case, as indicated hereinbefore, the first notice having not been served and the second notice having been withdrawn in terms of the reply issued by the learned advocate for the appellants themselves, the complainant cannot be said to have committed any illegality in presenting the cheque for the third time and issue the third notice upon the defaulter.” It may thus be seen that the Court had held in S.L.Construction, 2009 AIR SCW 1044, that earlier notices had not at all been served the first, notice having not been served and the second having been withdrawn. Therefore, the presentation of the cheque for the third time and issuance of notice upon its dishonour thereafter were held to give rise to fresh cause of action. Such is not the present case. In the cases before this Court earlier notices dated 28.03.2005 and 25.07.2005 had been duly received by the applicant. Therefore, the cause of action had crystallized and it was incumbent upon the complainant to file complaints before the Magistrate within a month of failure of the applicant to comply with the notices. The complainant's filing complaint on the basis of the subsequent dishonour and consequent notice without even bothering to refer to the earlier presentation of the cheque and issuance of notices was impermissible.” 12. The above decision is also supporting the case of the respondent/complainant. It is well settled that when the cause of action for filing the complaint under Section 138 of Negotiable Instrument Act has been arisen, since notice has been issued and intimating the fact that the cheque has been dishonored as insufficient funds or closed. Therefore, I am of the view that this application has been filed with a vexatious intention to stall the proceedings and hence the arguments advanced by the learned counsel for the petitioner does not merit acceptance. 13. He also relied on Section 58 of the Negotiable Instrument Act and submits that notice obtained by unlawful means or unlawful consideration. It was stated that her brother has obtained home loan from LIC. On 15.06.2012, Canara Ban cheque has been received for home loan from L.I.C. But, the disputed cheque number has not been given. Furthermore, it is a question of fact and that can be decided only at the time of trial. It was stated that her brother has obtained home loan from LIC. On 15.06.2012, Canara Ban cheque has been received for home loan from L.I.C. But, the disputed cheque number has not been given. Furthermore, it is a question of fact and that can be decided only at the time of trial. The question as to whether there is any suppression of material fact has also to be decided at the time of trial. The point of limitation is only the question of law. The complaint has been filed for the offence punishable under Section 138 of the Negotiable Instrument Act. In such circumstances, it is a question of fact and that can be decided only at the time of trial. It is an admitted case that the petitioner has not received any notice for dishonour of the cheque on 03.12.2013 and hence, the argument advanced by the learned counsel for the petitioner is unacceptable. The petitioner has come forward with this application with vexatious intention and it is an abouse of process of Court. Therefore, I am of the opinion that the application is liable to be dismissed with cost. 14. Accordingly, this criminal original petition is dismissed with cost of Rs.10,000/- which shall be payable to the Legal Services Authority, attached to this Court. The cost amount shall be paid within a period of two weeks from the date of receipt of a copy of this order.