- (1.) This revisional application under Section 482 Cr. P. C. is for the purpose of quashment of the proceedings being Complaint Case No. 480-C/97 under Section 138 of the Negotiable Instruments Act pending before the learned Judicial Magistrate, 7th Court, Bankura.
(2.) The petitioner issued a cheque dt. 8.8.97 amounting to Rs. 25,000/- to the O. P. No. 2 that is the Branch Manager of West Bengal Financial Corporation, Bankura Branch, Bankura in liquidation of part of a loan. The said cheque was dishonoured for want of sufficient fund upon which the complainant sent a notice under Section 138(b) dt. 9.9.97 calling upon the petitioner(accused) to pay the said amount. The said notice dt. 9.9.97 was received by the petitioner on 16.9.97. In the said notice a threat of initiating criminal proceeding under Section 138 of the N. I. Act was made on failure to pay the said amount within the time as specified in the said notice. The statutory time for filing complaint under Section 138 of the N. I. Act was within 31.10.97. But the complainant instead of filing any complaint under Section 138 of the Negotiable Instruments Act chose to present the cheque before the bank again for encashment. But the said cheque was further dishonoured for want of sufficient fund. Subsequently, the complainant gave further notice dt. 22.10.97 calling upon the petitioner to pay. By the said notice the complainant gave a further or second threat to initiate criminal proceeding under Section 138 of the Negotiable Instruments Act. Thereafter, the complainant filed a complaint under Section 138 of the Negotiable Instruments Act before the learned Chief Judicial Magistrate, Bankura, on the basis of the fresh and/or second presentation of the cheque and its dishonour which gave rise to the complaint Case No. 480-C/97 in question. Cause of action to file complaint under Section 138 of the Negotiable Instruments Act arose within one month from the day immediately following the day on which the period of fifteen days from the date of receipt of the notice dated 9.9.1997 expired. Combined reading of the Sections 138 and 142 leaves no room for doubt that cause of action within the meaning of Section 142(C) arises and can arose only once. No fresh cause of action arises on the basis of fresh representation of cheque and its dishonour, if notice under Clause (b) of Section 138 is issued on the basis of the first dishonour. In the instant case, offence was allegedly committed on the part of the petitioner immediately on his failure to make the payment within 15 days of the receipt of the notice dt. 9.9.1997 served in accordance with Clause (b) of the proviso of Section 138 and as per limitation prescribed under the statute the complaint ought to have been filed within 31.10.1997. Offence can be committed once and such offence was committed on the failure to make payment as aforesaid. Since the complaint has not been filed within the period of limitation, the petitioner has been absolved from such offence and there cannot be further proceedings for the similar offence upon fresh presentation of the cheque. The complaint in question which gave rise to complaint case No. 480-C/97 pending before the Judicial Magistrate, 7th Court at Bankura is liable to be quashed as complainant had earlier taken recourse of Clause (b) of Section 138 of the said Act but did not avail the cause of action arose in his favour under Section 142(b) of the Negotiable Instruments Act. In the facts and circumstances of the present case, continuation of the proceedings being complaint case No. 480-C/97 would be nothing but abuse of the process of the Court and the petitioner shall be put in unnecessary harassment. Hence, the revisional application for quashing of the complaint Case No. 480-C/97 pending before the learned Judicial Magistrate, Bankura.
(3.) On the basis of the facts as alleged in the revisional application as stated above it has been argued by the learned advocate for the petitioner- accused that cause of action to file complaint under Section 138 of the Negotiable Instruments Act arose within one month from the day immediately following the day on which the period of fifteen days from the date of receipt of the notice dated 9.9.1997 expired. Combined reading of the Sections 138 and 142 leaves no room for doubt that cause of action within the meaning of Section 142(c) arises and can arise only once. No fresh cause of action arises on the basis of fresh representation of cheque and its dishonour, if notice under Clause (b) of Section 138 is issued on the basis of the first dishonour. In the instant case offence was allegedly committed on the part of the petitioner immediately on his failure to make the payment within 15 days of the receipt of the notice dated 9.9.1997 served in accordance with Clause (b) of the proviso of Section 138 and as per limitation prescribed under the statute the complaint ought to have been filed within 30.10.1997. Offence can be committed once and such offence was committed on the failure to make payment as aforesaid. Since the complaint has not been filed within the period of limitation, the petitioner has been absolved from such offence and there cannot be further proceedings for the similar offence upon fresh presentation of the cheque. It has been further submitted that the continuation of the proceeding on the basis of a complaint without a cause of action would be nothing but an abuse of the process of Court. A decision of the Supreme Court in 1988 SCC (VI), 514 was relied upon.;