- (1.) - By this writ petition in the petitioners have sought relief for "issuance of a writ or order or direction in the nature of writ of certiorari quashing the proceedings taken against the petitioners under Sections 134 and 141 of the Negotiable instruments Act pending before opposite party No. 1, that is Ist Additional Munsif magistrate, Lucknow in case No. 7 of 1992. The petitioners have further sought the relief of issuance of writ or order or direction in the nature of mandamus commanding the opposite party No. 1 not to proceed against them, that in the petitioners, till the final disposal of the writ petition.
(2.) THE facts of the case i. e. , the petitioner's case in brief is that petitioner No. 1 is a Director of the Company, that is petitioner No. 2 and is managing the affairs of the Company. That opposite/party No. 2 namely Ram Kumar Gupta filed the complaint under Section 138/141 of the Negotiable Instruments Act on 17. 9. 1991. A copy of the complaint has been annexed as Annexure No. 1 to the writ petition. The petitioner's case is that opposite-party No. 1 has taken cognizance of that complaint and issued summons to the petitioners in July 1992. The further submits that the petitioner took preliminary objection to the maintainability of the complaint field under Section 138 of the Negotiable Instruments Act on the ground that notice contemplated under section 138 of the Act has not been received by the petitioner No. 1. The petitioner's case is that offence could be said to have been committed only on the refusal of the drawer of the cheque to pay the amount within 15 days on the receipt of the requisite notice to be given by the complainant. The petitioner took the objection to the fact that the complaint was time barred and as such was not tenable. According to the petitioner's case in alternative, there is no contemplation of subsequent production of the cheque to the Bank after its rejection and the limitation is to be counted only from the date of the rejection of the cheque. The petitioner's further case is that the cheque in question, was presented to the Bank firstly on 9. 7. 1991 and on the same date for the paucity of funds in the said account to honour the cheque at the time, it was presented on 25. 7. 1991 it was returned unpaid by Bank to opposite-party No. 2 on the same date and again it was represented on 23. 8. 1991 and was again returned on the same date. The petitioner's case is that once payment had been refused by the bank in respect of the cheque on account of paucity of fund on 9. 7. 1991, the opposite-party No. 2 should have issued a notice within 15 days thereof but he failed to comply with the said provision and presented the cheque after lapse of 15 days to the bank, again on 25. 7. 1991 and when again this time the same was returned by the bank unpaid, the opposite-party No. 2 did not issue any notice within 15 days. Instead after a lapse of one month therefrom, he again presented the cheque on 23rd august, 1991 to the Bank that is this was third time and this time also cheque was returned back unpaid. That after this time the opposite-party No. 2 is alleged to have issued notice dated 28. 8. 1991 but the same has not been served on the petitioner. That complaint has been filed without service of the notice contemplated under section 138 of the Act - before opposite-party No. 1 on 17. 9. 1991. So it is bad in law. The petitioners' case primarily is that complaint was not maintainable as no notice has been served on the petitioners. It is also alleged in the petition that the petitioners did not refuse to pay the amount under the cheque to the petitioners. In alternative the second point taken by the petitioners has been that complaint has been time-barred as it has not been filed in time after 9. 7. 1991 when the cheque was first returned by the Bank, after complying with the other requirements of law on the first refusal of the bank to pay the amount. Once cheque dishonoured on first presentation, second or subsequent presentation after first refusal is not contemplated in the law. The learned counsel for the petitioner has submitted that the complaint was not maintainable as no notice has been served by the opposite-party No. 2 on the petitioners, informing the petitioners that the Bank has refused the payment of the cheque, on its presentation and so that is on account of non-service of the notice as mentioned above there did not arise any occasion for the petitioners to have refused the payment of the amount of the cheque and there is no allegation to that effect in the complaint that notice had been served and inspite thereof the payment had not been made. The petitioner's counsel submitted in absence of such allegations in the complaint the said complaint is liable to be quashed as there did not arise any case of action for filing the said complaint. On behalf of the opposite-parties the petition has been contested and opposed by Sri. S. B. Misra, counsel for the opposite-parties who had also filed the counter-affidavit. In the counter-affidavit vide para-4 of the counter-affidavit to which my contention has been invited it has been stated as under : "that in para 4 of the writ petition this must is admitted that preliminary objection was filed. Notice has been served by refusal and the complaint has been filed on the expiry of the 15 days as stated in paragraph 10 of the complaint. "
(3.) THE opposite-parties have further stated that Section 138 of the Negotiable instruments Act did not bar the subsequent presentation of the cheque for payment within the currency of period of six months. The holder of the cheque is at liberty to present the cheque as many times as possible within that period of six months, in order to obtain payment till the payment has not been made of the same and in doing so that is in presenting the cheque twice or thrice, in order that payment be made as soon as there is sufficient amount in the account of the petitioners so that the cheque that was issued be got paid and honoured instead of going in litigation from very beginning. When the cheque was dishonoured, in the last resort, the answering opposite-party did issue the notice to the petitioners and that the same was served on them by refusal thereof, by the petitioner on 2. 9. 1991 and the complaint was filed on 17. 9. 1991.;