- (1.) THE petitioners in C.C.No.33 of 1998 on the file of the District Munsif-cum-Judicial Magistrate, Arcot, have filed this petition under Sec.482, Crl.P.C. to quash the said proceedings.
(2.) THE respondents herein has filed a complaint against the petitioners under Sec.138, Negotiable Instruments Act, alleging that the cheque issued by the petitioners herein for a sum of Rs. 1 lakh, dated 5.12.1997 towards the liability in the business transaction was presented through Indian Bank, Park Town,Chennai and was returned as "dishonoured" on 12.12.1997. In the complaint, the respondent herein has stated that he has issued a notice on 18.12.1997 which was acknowledged by the petitioners herein on 24.12.1997 and sent a reply dated 26.12.1997. THE respondent has issued another notice dated 20.2.1998 which was acknowledged by the petitioners herein on 21.2.1998, but no reply was sent. THE second notice issued by the respondent herein was acknowledged by the petitioners on 21.2.1998 and the offence will be deemed to have been committed on the expiry of 15 days from the said date i.e., 8.3.1998. However, the complaint was filed before the Magistrate on 5.3.1998 itself and there was no cause of action for the said complaint on that date and on that ground the complaint is not maintainable. Even if the cause of action is taken from the date of first notice date 18.12.1997 acknowledged on 24.12.1997, the period of limitation to file the complaint as per the provisions of Sec. 142(b) of the Negotiable Instruments Act has been expired. On both or on any one of these two grounds, this complaint is liable to be quashed. Learned counsel for the respondent/complainant has contended that the complaint was well within the time as prescribed under the provisions of the Negotiable Instruments Act and has relied on certain decisions in support of his contention. The question which is canvassed in this Crl.O.P. is whether the complaint is maintainable on the ground of cause of action or limitation. The first decision relied on by the petitioner is of a Division Bench of this Court in Veeraraghavan v. Lalith Kumar Veeraraghavan v. Lalith Kumar, (1994)2 L. W. (Crl.) 663. In the said decision the learned Judges of this Court have gone into the various provisions of the Negotiable Instruments Act. However, there is no direct answer in that decision to the question raised in the present Crl.O.P. In Narang Industries Ltd. v. Ashok Leyland Finance Ltd. Narang Industries Ltd. v. Ashok Leyland Finance Ltd., (1997)2 L.W. (Crl.) 699 it was held that the cause of action is a product of several parts of an offence, such as dishonour of cheque, notice for payment of cheque issued, in conformity with Clause (b) of proviso to Sec.138, Crl.P.C. In M/s. Electronics Trade and Technology Development Corporation Ltd., Secunderabad v. M/s. Indian Technologists and Engineers (Electronics) Private Ltd. M/s. Electronics Trade and Technology Development Corporation Ltd., Secunderabad v. M/s. Indian Technologists and Engineers (Electronics) Private Ltd. , (1996)1 L.W. (Crl.) 325 the Apex Court held- "Sec.138 draws presumption that one commits the offence if he issued the cheque dishonestly. It is seen that once the cheque has been drawn and issued to the payee and the payee has presented the cheque and thereafter, if any instructions are issued to the Bank for non-payment and the cheque is returned to the payee with such an endorsement, it amounts to dishonour of cheque and it comes within the meaning of Sec.138." Strictly speaking, in these decisions their Lordships have considered Sec.138 Negotiable Instruments Act and not the particular point of cause of action or limitation raised in the instant case. In Rajendra Singh v. M/s.Lahari Recording Co. Private Ltd. Rajendra Singh v. M/s.Lahari Recording Co. Private Ltd. , 1998 Crl.L.J. 1680 the Karnataka High Court held that if a cheque was presented on more than one occasion, limitation therefor would be counted from the date of last dishonour of cheque.
(3.) LEARNED counsel for the petitioners herein has relied on a decision of the Supreme Court in Sadanadan Rhadran v. Madhavan Sunil Kumar Sadanadan Rhadran v. Madhavan Sunil Kumar, (1998)4 Scale 712,their Lordships of the Supreme Court held at page 712. "The combined reading of the above two sections (142 & >(138 of the (Negotiable Instruments) Act leaves no room for doubt that cause of action within the meaning of Sec. 142(c) arises- and can arise - Only once." ".. At page 713. "Now, the question is how the apparently conflicting provisions of the Act, one enabling the payee to repeatedly present the cheque and the other giving him only one opportunity to file a complaint for its dishonour, and that too within one month from the date the cause of action arises, can be reconciled. Having given our anxious consideration to this question, we are of the opinion that the above two provisions can be harmonised, with the interpretation that on each presentation of the cheque and its dishonour a fresh right - and not cause of action - accrues in his favour, He may, therefore, without taking pre-emptory action in exercise of his such right under clause (b) of Sec.138, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque- But, once he gives a notice under clause (b) of Sec.138 he forfeits such right for in case of failure of the drawer to pay the money within the stipulated time he would be liable for the offence and the cause of action for filing the complaint will arise. Needless to say, 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." Their Lordship have clearly held that a cheque can be presented more than once during its validity, but once a notice is given under clause (b) of Sec.138 to the drawer, in the event of his failure to pay the money within the stipulated time, he would be liable for the offence and the cause of action for filing the complaint will arise, immediately following the day on which the period of fifteen days from the date of receipt of notice by the drawer expire and as per the provisions of Sec.142(b) such complaint should be filed within one month from the date on which the cause of action arises under clause (c) of the proviso to Sec.138. In the instant case, the cheque in question was drawn in favour of the complainant on 5.12.1997 and at the first instance when it was presented for encashment on 8.12.1997, it was returned as "dishonoured" on 12.12.1997. The complainant has to issue notice within 15 days from 12.12.1997 and accordingly notice was issued on 18.12.1997 and further it was acknowledged by the respondent on 24.12.1997. The amount was not paid within 15 days from 24.12.1997. i.e., on or before 8.1.1998. The demand was not fulfilled by the petitioners herein. Therefore the complaint has to be filed within one month thereafter. But no such complaint was filed. As held by the Supreme Court in (1998)4 Scale 712, the liability of the drawer for being prosecuted for the offencearises only once. If the said meaning is taken, the complaint ought to have been filed within 8.2.1998. Actually this complaint was filed only on 5.3.1998. Therefore, there is no cause of action for the said complaint, and the same is barred by limitation. It is alleged that once again the respondent/ complainant has presented the cheque in the Nedungadi Bank, Arcot on 18.2.1998 and the same was returned on the same day with the endorsement that "funds insufficient. The respondent herein issued a Lawyer's notice on 20.2.1998 i.e., within the stipulated period, that was acknowledged by the petitioners herein on 21.2.1998 and the complaint was filed on 5,3.1998. However, the second presentation of the cheque may be valid for the encashment and not for deciding the question of cause of action and limitation. As held by the Supreme Court in the ruling cited above, cause of action arises only once and if notice is given under Sec.138(b) and the amount is not paid within the time stipulated under Sec.138(b) the drawer is liable for the offence and the complaint should be filed by reckoning the period of one month from the day immediately following the day on which the period of 15 days from the date of receipt of notice by the drawer expires. The complaint ought to have been filed on or before 8.2,1998, whereas it has been filed on 5.3.1998 and therefore the complaint is liable to be dismissed on this ground. The complaint filed by the respondent herein showing the second dishonour and the notice sent on the basis of such dishonour and the failure on the part of the drawer of the cheque and reckoning the period of limitation from such failure cannot be considered as cause of action arises only once. Since the cause of action arose due to the non-payment of the money on the basis of the earlier notice, the other contention raised by the respondent herein cannot be accepted and the complaint in C.C.No.33 of 1998 on the file of the District Munsif-cum-Judicial Magistrate, Arcot is liable to be quashed. In the result, the complaint in C.C.No.33 of 1998 on the file of the District Munsif cum Judicial Magistrate, Arcot is quashed. ;