PRUTHVISH B DAVE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition challenges the complaint lodged before the JMFC, Anand under Section 138 of the Negotiable instrument Act registered vide No : 6597/97 lodged by the respondent No.2 herein.

(2.) The short say of the complainant is that the present petitioner had issued a cheque No : 516341 for Rs.30,000.00 dated 12/03/19997 drawn on Sardarganj Mercantile Co-Op Bank, Anand bearing in favour of Shree Laxmi Credit Co-Op Society Ltd. The said cheque was presented for encashment through Charotar Nagrik Charotar Nagrik Co-Op Bank, Anand and the same was dishonoured for want of balance in the account. A notice was therefore issued by the complainant to the petitioner which was duly served. Even despite that notice, there was no response from the petitioner. Thereafter, the cheque was again presented on 5-6-1997 for encashment and the same was again dishonoured with an endorsement of insufficient balance in the account. The intimation was given to the complainant on 6-6-1997 and therefore, a notice was served on the petitioner. The petitioner did not pay any heed to the notice and therefore, the complainant was lodged on 9-7-1997. The learned Magistrate after recording the statement, directed to register the complaint and further directed to issue summons for offence under Section 138 of the Negotiable Instruments Act.

(3.) It has been argued by Mr.Thakkar, learned advocate on behalf of the petitioner that the complaint deserves to be quashed on two counts. One is that the complainant is neither the payee nor a holder in due course and there is no averment to that effect in the complaint. His second contention is that the complaint is time barred as admittedly, on return of cheque, on 12/03/1997, a notice was served and therefore, the cause of action for the complaint started running from the date of receipt of the notice by the petitioner. Second presentation of the cheque and issuance of the second notice cannot extent the period of limitation for cause of action arose on service of the first notice. In support of his arguments, he has pressed in service the decision of this High Court in case of DIPENDRA G. CHOKSHI & ANR. V. KAILASHCHANDRA C. DHOOT & ANR. 1995 (1) G.L.R. 424 and in the case of SADANANDAN BHADRAN V. MADHAVAN SUNIL KUMAR JT 1998 (6) SC 48.