K P MURALI Vs. VITAN DEPARTMENTAL STORES

JUDGEMENT

(1.) THE petitioner who is the accused in C.C.No.3294 of 2007 on the file of the learned VII Metropolitan Magistrate, George Town, Chennai, and who is facing trial for an offence under Section 138 of the Negotiable Instruments Act has filed the above Criminal Original Petition under Section 482 of the Criminal Procedure Code seeking to quash all further proceedings therein.

(2.) LEARNED counsel for the petitioner submitted that in respect of the dishonour of the three cheques issued by the petitioner the complainant/ respondent herein has stated that a statutory notice was sent on 04.01.2007 but the same was returned with the postal endorsement 'Intimation Delivered' on 13.01.2007 and treated the same as deemed service of notice. The complaint was filed and the same has been taken on file. He further submitted that during the course of cross-examination of P.W.1 he has admitted that a notice dated 14.11.2006 was sent when the three cheques were presented for encashment for the first time but the same was returned un-served with the postal endorsement -left- the returned notice has been marked as Ex.D-1. He further submitted that since admittedly the complainant had sent a notice on 14.11.2006 and the same had been returned with the postal endorsement 'left- he ought to have filed the complaint since already the cause of action for filing the complaint has accrued but instead of that the complainant had again presented the cheques for encashment and on the cheques being returned unpaid again the second notice dated 14.01.2007 has been sent and on the alleged cause of action said to have arisen on the basis of the second notice sent by the complainant the complaint has been filed which as per law is not maintainable. He further basing reliance on the decision of the Apex Court reported in 1998 (II) CTC 462 (Sandanandan Bhadran v. Madhavan Sunil Kumar) wherein in paragraph 10 it has been held as under:-'.10. 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 harmonized, 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 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.-submitted that the complaint filed based on the alleged second cause of action is not maintainable. LEARNED counsel for the petitioner further submitted that in the light of the provisions contained under Section 27 of the General Clauses Act 1897 even if the notice is returned with the postal endorsement -left- it should be deemed to have been served and as such the cause of action for filing the complaint had already accured and therefore the complainant ought to have filed the complaint on the basis of such cause of action, but when admittedly, the complainant has not filed the complaint and had chosen to present the cheques for encashment for the second time and only based on the alleged second cause of action the complaint had been filed the cognizance taken on that basis is bad.

(3.) AS laid down in the decision reported in 1998 (II) CTC 462 (referred to supra) by the Apex Court that there can be only one cause of action and such cause of action, as pointed out above, has already arisen and as such the complaint filed on the basis of the second cause of action ought not to have been taken cognizance of by the learned Magistrate.