RICHARD SAMSON SHERRAT Vs. STATE OF ANDHRA PRADESH
HIGH COURT OF ANDHRA PRADESH
RICHARD SAMSON SHERRAT
STATE OF ANDHRA PRADESH
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(1.)The array of parties is the same in both the cases. The petitioner is accused of the offence u/S. 138 of the Negotiable Instruments Act, 1881 in C.C. No. 95/91 in the Court of the II Metropolitan Magistrate, Hyderabad. The second respondent laid complaints against the petitioner in C.C. Nos. 95/91 and 169/91 in the aforesaid Court alleging that the petitioner issued seventeen post-dated cheques in terms of compromise arrived at between the parties towards recovery of rents due from the petitioner. In No. 95/91 the complainant presented the cheque dated 20-4-91 for encashment and it was returned twice by the bank on 23-4-91 and 3-6-91 with the endorsement 'refer to drawer'. The second cheque dated 25-4-91 was also returned once and was presented on 3-6-91 again, which was also returned with the endorsement 'insufficient funds'. The third cheque dated 4-5-91 was also dishonored twice on 7-5-91 and 3-6-91 with the same endorsement. The complainant alleges that the cheques were presented after giving due prior notice by the letter dated 28-5-91 to the petitioner, who paid a sum of Rs. 4,000.00 and was still liable to pay the balance. The complainant issued a lawyer's notice dated 10-6-91 which was received by the petitioner on 13-6-91, but the petitioner failed to make any payment.
(2.)The learned counsel for the petitioner contended that the complaint is time-barred, as it was presented on 5-7-91, beyond one month from the date when the cause of action arose, under Clause (c) of Proviso to S. 138 of the Act. The causes of action arose on the dates when the cheques were returned after presentation for the first time. The learned counsel argued that no fresh cause of action can arise on presentation of cheques for a second time and such representation of cheques is not contemplated to give rise to fresh cause of action under the proviso to S. 138.
(3.)In support of his contention, the learned counsel for the petitioner relied on the judgment of a Division Bench in Kumaresan v. Ameerappa, 1992 (1) Crimes 23, and contended that the payee cannot have a second cause of action on the same cheque when once he had failed to institute a complaint on the strength of the first cause of action. A Division Bench of the Kerala High Court differed from the view expressed by another Division of the same High Court in Mahadevan Sunil Kumar v. Bhadran, 1991 (1) KLJ 335, and held that there can be no second cause of action on the same cheque. In Mahadevan's case, the Division Bench held as follows :
"It is clear cause of action for filing the complaint may arise on several occasions and the payee or holder in due course in entitled to present the cheque at any time within a period of six months from the date on which it was drawn and for filing the complaint he should have served notice of such dishonour to the drawer; the payee or holder in due course can make a second representation of the cheque and if other conditions are fulfilled, he can launch a complaint on the basis of the second dishonour of the cheque as the cheque would remain valid for a period of six months."
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