VINOD K.SHARMA, J. - (1.) THIS is a petition under section 482 of the Code of Criminal Procedure for quashing of complaint titled Mohan Singh v. Satish Kumar, Annexure P.1, pending in the court of Shri R.K. Mehta, Judicial Magistrate First Class, Chandigarh as well as summoning order dated 11.5.2005, Annexure P.2 and all subsequent proceedings arising therefrom.
(2.) THE only ground on which the petitioner seeks quashing of complaint is that the complaint filed by the petitioner under section 138 of the Negotiable Instruments Act is time barred and no cognizance of the said complaint could be taken by the learned Magistrate. In support of his contention learned counsel for the petitioner has referred to para No. 6 of the complaint, which reads as under :- "6. That it is pertinent to mention here that even earlier also, the above said Cheque was presented for its collection by the complainant with his bankers but the same was also returned dishonoured. When the accused was personally contracted he made a personal request to wait for few months and on his oral request, the complainant again presented the said cheque, which met with the same results."
(3.) LEARNED counsel for the petitioner contends that once cause of action has accrued to the complainant at the time of dishonour of the cheque, it was not open to the complainant to present the cheque for the second time to bring the matter in limitation. In support of this contention learned counsel for the petitioner has placed reliance on the judgment of Hon'ble Supreme Court in the case of Krishan Exports v. Raju Das, 2006(2) RCR (Criminal) 672 : 2006(2) Apex Crl. 225 (SC) wherein Hon'ble Supreme Court has been pleased to lay down as under :- "2. The learned counsel for the appellants submits that the complaint is not maintainable because the cause of action had arisen on the dishonour of the cheque in the first instance i.e. on 14.2.1995, but no complaint was filed within one month thereafter. Though a notice was issued on 15.2.1995 demanding payment under the cheque, the complain was not filed. The cheque was represented on 22.6.1995. Again the bank returned the cheque as it had instructions to stop payment. The respondent then took the step of issuing another notice on 29.6.1995 for which the appellant replied on 7.7.1995 denying his liability. The respondent thereafter filed a complaint under Section 138 read with 141 of the Negotiable Instruments Act on 31.7.1995. Section 142 of the Negotiable Instruments Act enacts a bar against taking cognizance of an offence under Section 138 unless such a complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. Clause (c) of the proviso to Section contemplates a situation when the drawer of such cheque fails to make the payment of the money to the payee or as the case may be to the holder in due course of the cheque within 15 days of the receipt of the failure of the drawer of the cheque to make the payment in compliance with the demand made in the notice, it is the contention of the learned counsel for the appellant that the accrual of cause of action under Section 142(b) read with clause (c) of the proviso to Section 138 is relatable to the first notice and on the expiry of the period of 15 days, the complaint ought to have been filed within one month thereafter. However, the contention of the learned counsel for the respondent is that one month period as contemplated by Section 142(b) should be reckoned with reference to the expiry of the period of 15 days after the second notice was issued on 29.6.1995. It is submitted that there is no bar to represent the cheque so long as the cheque is valid and it was, therefore, open to the respondent to file a complaint after the issuance of the second notice. The issue is no longer res integra. A similar contention advanced on behalf of the respondent has been negatived by this court construing the relevant provisions of Sections 138, 141 and 142 of the Act in Sadanandan Bhadran v. Madhavan Sunil Kumar, 1998(4) RCR(Criminal) 90 : 1998(2) MPLJ (SC) 422 : (1998) 6 SCC 514. This Court observed that a combined reading of Section 138 and Section 142 leaves no room for doubt that cause of action within the meaning of Section 142(b) arises and can arise only once. At para 9 it was clarified as under :- "9. 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 premptory action in exercise of his such right under clause (b) of Section 138, go on presenting the cheqaue so as to enable him to exercise such right at any point of time during the valadity 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 date of the receipt of the notice by the drawer expires." ;