- (1.) Both the criminal revisions are taken up together for the sake of convenience and again as those are directed against the same order impugned. By order dated 20.09.2004 the learned Judicial Magistrate, 3rd Court, Alipore passed an order in connection with Complaint Case No. C-4415 of 2003 under section 138 of the Negotiable Instruments Act. The maintainability of that petition was challenged by the accused before the learned Magistrate and after hearing both the parties the learned Magistrate was pleased to reject the question of maintainability raised by the accused before him. The question agitated before the learned Magistrate was that the complainant had issued two notices dated 27.06.2003 and thereafter dated 21.07.2003.
(2.) Mr. Krishnendu Bhattacharjee, the learned Advocate appearing for the petitioner has submitted that where two notices are issued and the case is filed on the basis of the second notice, the second notice is bad in law and in this connection he has referred to the ratio decided in the case of Sadanandan Bhadran vs. Madhavan Sunil Kumar, 1998 SCC (Cri) 1471. It was decided in the case that in a generic and wide sense "cause of action" means every fact which is necessary to establish to support a right or obtain a judgment. Viewed in that context, the following facts are required to be proved to successfully prosecute the drawer for an offence under section 138 of the Act: (a) that the cheque was drawn for payment of an amount of money for discharge of a debt/liability and the cheque was dishonoured; (b) that the cheque was presented within the prescribed period; (c) that the payee made a demand for payment of the money by giving a notice in writing to the drawer within the stipulated period ; and (d) that the drawer failed to make the payment within 15 days of the receipt of the notice.
(3.) Mr. Dipankar Dhar, the learned Advocate appearing with Ms. Swati Bhattacharjee, the learned Advocate has submitted before me thai he also relies on the judgment passed in the case of S. Bhadran (supra) and he has drawn my attention to paragraph 9 of the said judgment which reads as under : "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 - argues in his favour. He may, therefore, without taking pre-emptory action in exercise of his such right under clause (b) of section 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 section 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 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.";