JUDGMENT : Banwari Lal Sharma, J. Vide order of this Court dated 16.08.2013 in absence of petitioner or his counsel notice was issued to non-petitioner No. 2 but even after lapse of more than 2 years, petitioner failed to file required extra set, therefore, with the consent of learned counsel for the petitioner Shri Pawan Choudhay, the matter was heard finally. 2. In this misc. petition, petitioner accused assailed the impugned order dated 25.08.2012 by which learned Court below dismissed the application of petitioners accused submitted under Section 294 Cr.P.C. 3. The brief facts of the case are that a complaint under Section 138 NI Act was preferred by respondent complainant M/s Chirag Heritage against the present petitioners before the Court of learned Special Judicial Magistrate (NI Act) No. 2 Jaipur City, Jaipur wherein cognizance was taken against the present petitioners under Section 138 NI Act and they were summoned. After appearance before the Trial Court, petitioners accused moved an application under Sections 294 and 311 Cr.P.C. stating therein that complainant during his cross-examination on 30.09.2011 deposed that:- ^^izFke ckj pSd ykSVk bl ckcr dksbZ fof/kd dk;Zokgh ugha dh uk gh uksfVl fn;kA** He further deposed during cross-examination that :- ^^;fn ugha fd eqyfte us Qksu ls ;k fyf[kr esa lwfpr fd;k gS vkidk eky lgh ugha gSa] blfy, pSd LvkWi isesaV djk jgs gSA** 4. Lastly in the application it was prayed that the application may be allowed and complainant Roshan Maheshwari and Shri Jitendra Mitruka, Advocate may be summoned and the documents may be taken on record. The said application was partly dismissed by the learned Trial Court vide impugned order dated 25.08.2012, therefore, this misc. petition is filed. 5. Learned counsel for petitioner Shri Pawan Choudhary submits that since once the disputed cheque was dis-honoured by the banker of petitioners accused and respondent complainant did not issue any notice to petitioner accused. Not only this, he failed to file any complaint against the present petitioners. Thereafter, he again produced the cheque before the bank and when it was dishonoured on second time, then he issued notice. He submits that the cause of action was arised for prosecution under Section 138 NI Act on dis-honouring of cheque at the first instance on 08.10.2009. Respondent complainant has again filed complaint on the second cause of action and the complaint of respondent complainant on second dis-owner his not maintainable. He submits that the cause of action was arised for prosecution under Section 138 NI Act on dis-honouring of cheque at the first instance on 08.10.2009. Respondent complainant has again filed complaint on the second cause of action and the complaint of respondent complainant on second dis-owner his not maintainable. Without considering this fact, learned Trial Court wrongly rejected the application of petitioners accused, therefore, the impugned order may be quashed and set aside and this misc. petition may be allowed. He further submits that petitioner may also be given opportunity to produce the notice and prove it. 6. I have considered the submissions made by learned counsel for the petitioners. The issue raised in the application submitted by petitioners accused has already been dealt with larger Bench of Supreme Court in the matter of MSR Leathers v. S. Palaniappan & Anr. Reported in (2013) 1 Supreme Court Cases 177 wherein Hon'ble Supreme Court held that :- "Neither Section 138 nor Section 142 of the Act or any other provision contained in the said Act prevents the holder or the payee of the cheque from presenting the cheque for encasement for any number of occasions within a period of six months from the date of its issuance or within a period of its validity, whichever is earlier. The proviso to Section 138, however, is all important and stipulates three distinct conditions precedent, which must be satisfied before the dishonour of a cheque can constitute an offence and become punishable. The first condition is that the cheque ought to have been 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. The second condition is that the payee or the holder in due course of the cheque, as the case may be, ought to make a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. The third condition is that the drawer of such a cheque should have failed to make payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. It is only upon the satisfaction of all the three conditions mentioned above and enumerated under the proviso to Section 138 as clauses (a), (b) and (c) thereof that an offence under Section 138 can be said to have been committed by the person issuing the cheque. The expression "cause of action" has been universally understood to mean the bundle of facts which the plaintiff must prove in order to entitle him to succeed in the suit. State of Madras v. C.P. Agencies, AIR 1960 SC 1309 - Mohd. Khalil Khan v. Mahbub Ali Mian, (1947-48) 75 IA 121 : AIR 1949 PC 78 , relied on As per Section 142 of the NI Act, a complaint under Section 138 can be filed only after cause of action to do so has accrued in terms of clause (c) of the proviso to Section 138 (provided the other two conditions specified above are also satisfied) which right remains legally enforceable for a period of 30 days counted from the date on which the cause of action accrued to him. There is nothing in the provisions of the Act that forbids the holder/payee of the cheque to demand by service of a fresh notice under clause (b) of the proviso to Section 138 of the Act, the amount covered by the cheque, should there be a second or a successive dishonour of the cheque on its presentation. 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 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 prosecution of the drawer. There is, in our view, nothing either in Section 138 or Section 142 to curtail the said right of the payee, leave alone a forfeiture of the said right for no better reason than the failure of the holder of the cheque to institute prosecution against the drawer when the cause of action to do so had first arisen. Simply because the prosecution for an offence under Section 138 must on the language of Section 142 be instituted within one month from the date of the failure of the drawer to make the payment does not in our view militate against the accrual of multiple causes of action to the holder of the cheque upon failure of the drawer to make the payment of the cheque amount. In the absence of any juristic principle on which such failure to prosecute on the basis of the first default in payment should result in forfeiture, we find it difficult to hold that the payee would lose his right to institute such proceedings on a subsequent default that satisfies all the three requirements of Section 138. 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-a-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. 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. 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. There is nothing in Section 142(b) to suggest that prosecution based on subsequent or successive dishonour is impermissible. While a complaint based on a default and notice to pay must be filed within a period of one month from the date the cause of action accrues, which implies the date on which the period of 15 days granted to the drawer to arrange the payment expires, there is nothing in Section 142 to suggest that expiry of any such limitation would absolve him of his criminal liability should the cheque continue to get dishonoured by the bank on subsequent presentations. So long as the cheque is valid and so long as it is dishonoured upon presentation to the bank, the holder's right to prosecute the drawer for the default committed by him remains valid and exercisable. The argument that the holder takes advantage by not filing a prosecution against the drawer has not impressed us. So long as the cheque is valid and so long as it is dishonoured upon presentation to the bank, the holder's right to prosecute the drawer for the default committed by him remains valid and exercisable. The argument that the holder takes advantage by not filing a prosecution against the drawer has not impressed us. By reason of a fresh presentation of a cheque followed by a fresh notice in terms of Section 138, proviso (b), the drawer gets an extended period to make the payment and thereby benefits in terms of further opportunity to pay to avoid prosecution. Such fresh opportunity cannot help the defaulter on any juristic principle, to get a complete absolution from prosecution. A prosecution based on a second or successive default in payment of the cheque amount should not be impermissible simply because no prosecution based on the first default which was followed by a statutory notice and a failure to pay had not been launched. If the entire purpose underlying Section 138 of the Negotiable Instruments Act is to compel the drawers to honour their commitments made in the course of their business or other affairs, there is no reason why a person who has issued a cheque which is dishonoured and who fails to make payment despite statutory notice served upon him should be immune to prosecution simply because the holder of the cheque has not rushed to the court with a complaint based on such default or simply because the drawer has made the holder defer prosecution promising to make arrangements for funds or for any other similar reason. There is no real or qualitative difference between a case where default is committed and prosecution immediately launched and another where the prosecution is deferred till the cheque presented again gets dishonoured for the second or successive time. The prosecution based upon second or successive dishonour of the cheque is permissible so long as the same satisfies the requirements stipulated in the proviso to Section 138 of the Negotiable Instruments Act. There is nothing in the proviso to Section 138 or Section 142 for that matter, to oblige the holder/payee of a dishonoured cheque to necessarily file a complaint even when he has acquired an indefeasible right to do so. There is nothing in the proviso to Section 138 or Section 142 for that matter, to oblige the holder/payee of a dishonoured cheque to necessarily file a complaint even when he has acquired an indefeasible right to do so. The fact that an offence is complete need not necessarily lead to launch of prosecution especially when the offence is not a cognizable one. It follows that the complainant may, even when he has the immediate right to institute criminal proceedings against the drawer of the cheque, either at the request of the holder/payee of the cheque or on his own volition, refrain from instituting the proceedings based on the cause of action that has accrued to him. Such a decision to defer prosecution may be impelled by several considerations but more importantly it may be induced by an assurance which the drawer extends to the holder of the cheque that given some time the payment covered by the cheques would be arranged, in the process rendering a time consuming and generally expensive legal recourse unnecessary. It may also be induced by a belief that a fresh presentation of the cheque may result in encashment for a variety of reasons including the vicissitudes of trade and business dealings where financial accommodation given by the parties to each other is not an unknown phenomenon. There is no reason why parties should, by a process of interpretation, be forced to launch complaints where they can or may like to defer such action for good and valid reasons. After all, neither the courts nor the parties stand to gain by institution of proceedings which may become unnecessary if cheque amount is paid by the drawer. The magistracy in this country is over-burdened by an avalanche of cases under Section 138 of Negotiable Instruments Act. If the first default itself must in terms of the decision in Sadanandan Bhadran's case (supra) result in filing of prosecution, avoidable litigation would become an inevitable bane of the legislation that was intended only to bring solemnity to cheques without forcing parties to resort to proceedings in the courts of law. If the first default itself must in terms of the decision in Sadanandan Bhadran's case (supra) result in filing of prosecution, avoidable litigation would become an inevitable bane of the legislation that was intended only to bring solemnity to cheques without forcing parties to resort to proceedings in the courts of law. While there is no empirical data to suggest that the problems of overburdened magistracy and judicial system at the district level is entirely because of the compulsions arising out of the decisions in Sadanandan Bhadran's case (supra), it is difficult to say that the law declared in that decision has not added to court congestion. Hence, Sadanandan case, erroneously held that the second or subsequent dishonour of the cheque would not entitle the holder/payee to issue a statutory notice to the drawer nor would it entitle him to institute legal proceedings against the drawer in the event he fails to arrange the payment. It was erroneously held therein that while a cheque is presented afresh the right to prosecute the drawer, if the cheque is dishonoured, is forfeited only because the previous dishonour had not resulted in immediate prosecution of the offender even when a notice under clause (b) of the proviso to Section 138 had been served upon the drawer. Hence Sadanandan case is overruled. 7. Since the dispute has already been settled by the Hon'ble Supreme Court in the aforesaid judgment as respondent complainant can present the cheque during its validity time more than once, therefore, the application of petitioners accused is mis-conceived and there is no merit in this misc. petition, therefore, same is dismissed. 8. Stay application also dismissed.