D S ATHAVULLA Vs. A T THIAGARAJAN

JUDGEMENT

(1.) THE petitioners in C.C.No.33 of 1998 on the file of the District Munsif-cum-Judicial Magistrate, Arcot, have filed this petition under Sec.482, Crl.P.C. to quash the said proceedings.

(2.) THE respondents herein has filed a complaint against the petitioners under Sec.138, Negotiable Instruments Act, alleging that the cheque issued by the petitioners herein for a sum of Rs. 1 lakh, dated 5.12.1997 towards the liability in the business transaction was presented through Indian Bank, Park Town,Chennai and was returned as "dishonoured" on 12.12.1997. In the complaint, the respondent herein has stated that he has issued a notice on 18.12.1997 which was acknowledged by the petitioners herein on 24.12.1997 and sent a reply dated 26.12.1997. THE respondent has issued another notice dated 20.2.1998 which was acknowledged by the petitioners herein on 21.2.1998, but no reply was sent. THE second notice issued by the respondent herein was acknowledged by the petitioners on 21.2.1998 and the offence will be deemed to have been committed on the expiry of 15 days from the said date i.e., 8.3.1998. However, the complaint was filed before the Magistrate on 5.3.1998 itself and there was no cause of action for the said complaint on that date and on that ground the complaint is not maintainable. Even if the cause of action is taken from the date of first notice date 18.12.1997 acknowledged on 24.12.1997, the period of limitation to file the complaint as per the provisions of Sec. 142(b) of the Negotiable Instruments Act has been expired. On both or on any one of these two grounds, this complaint is liable to be quashed.

(3.) LEARNED counsel for the petitioners herein has relied on a decision of the Supreme Court in Sadanadan Rhadran v. Madhavan Sunil Kumar Sadanadan Rhadran v. Madhavan Sunil Kumar, (1998)4 Scale 712,their Lordships of the Supreme Court held at page 712. "The combined reading of the above two sections (142 & >(138 of the (Negotiable Instruments) Act leaves no room for doubt that cause of action within the meaning of Sec. 142(c) arises- and can arise - Only once." ".. At page 713. "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 pre-emptory action in exercise of his such right under clause (b) of Sec.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 Sec.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 the 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." Their Lordship have clearly held that a cheque can be presented more than once during its validity, but once a notice is given under clause (b) of Sec.138 to the drawer, in the event of his failure to pay the money within the stipulated time, he would be liable for the offence and the cause of action for filing the complaint will arise, immediately following the day on which the period of fifteen days from the date of receipt of notice by the drawer expire and as per the provisions of Sec.142(b) such complaint should be filed within one month from the date on which the cause of action arises under clause (c) of the proviso to Sec.138. In the instant case, the cheque in question was drawn in favour of the complainant on 5.12.1997 and at the first instance when it was presented for encashment on 8.12.1997, it was returned as "dishonoured" on 12.12.1997. The complainant has to issue notice within 15 days from 12.12.1997 and accordingly notice was issued on 18.12.1997 and further it was acknowledged by the respondent on 24.12.1997. The amount was not paid within 15 days from 24.12.1997. i.e., on or before 8.1.1998. The demand was not fulfilled by the petitioners herein. Therefore the complaint has to be filed within one month thereafter. But no such complaint was filed. As held by the Supreme Court in (1998)4 Scale 712, the liability of the drawer for being prosecuted for the offencearises only once. If the said meaning is taken, the complaint ought to have been filed within 8.2.1998. Actually this complaint was filed only on 5.3.1998. Therefore, there is no cause of action for the said complaint, and the same is barred by limitation.