SHINE LEATHER EXPORTS Vs. M BALASUBRAMANI

JUDGEMENT

(1.) FOR the The petitioners accused Nos. 1 and 2 in C. C. No. 262 of 1998 on the file of the Judicial Magistrate, Gudiyattam, have filed this petition under section 482 of the Code of Criminal Procedure to quash the proceeding pending against them. The case in brief for disposal of the petition is as follows : The respondent filed a complaint against the petitioners and another under section 138 of the Negotiable Instruments Act, 1881. Par a. 2 of the complaint discloses that the complainant had presented a cheque on June 23, 1998, and the cheque was returned on the ground of insufficient funds. He sent a letter to the petitioners dated June 29, 1998, and the same was received by the petitioners on July 1, 1998. The complainant again presented the very same cheque on September 4, 1998, and the same was returned for insufficient funds. Once again the respondent sent another notice on September 10, 1998, and the private complaint was filed on october 26, 1998. The cause of action for filing the complaint under section 138 of the Negotiable Instruments Act should be calculated from the issue of first notice dated June 28, 1998, and not from the second notice dated september 10, 1998. There can be only one cause of action and the respondent cannot get a fresh cause of action based upon the second notice. The statutory requirement as per section 142 of the Negotiable Instruments Act has not been adhered to. This principle is also supported by the decision of the apex court also. Heard learned counsel for the petitioners.

(2.) THE learned counsel for the petitioners contended that the cheque in question was presented for encashment by the respondent on June 23, 1998, and the same was returned on the ground "insufficient funds". Subsequently, the respondent sent a letter dated June 29, 1998, calling upon them to make the payment within a period of 15 days and the same was received by them on July 1, 1998. However, no complaint was filed under section 138 of the Negotiable Instruments Act immediately after the first dishonour of the cheque and after the first notice issued by the respondent. THE cheque Was again re-presented on September 4, 1998, and it was again returned for "insufficient funds". THEreafter, the respondent sent another notice through the lawyer on September 10, 1998, and a private complaint was filed on October 26, 1998, based on the second cause of action. Learned counsel for the petitioners mainly contended that there can be only one cause of action to file a complaint under section 138 of the negotiable Instruments Act. Now no complaint was filed based upon the first cause of action but, however, the complaint is filed based upon the second cause of action. In short, it is stated that the complainant failed to comply with the statutory requirements as per section 142 of the Negotiable instruments Act. Learned counsel also relied upon a decision of the apex court in Sadanandan Bhadran v. Madhavan Sunil Kumar, wherein it is observed as follows: "clause (a) of the proviso to section 138 does not put any embargo upon the payee to successively present a dishonoured cheque during the period of its validity. . . THE primary interest of the payee is to get his money and not prosecution of the drawer, recourse to which, normally, is taken out of compulsion and not choice. 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 preemptory 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 the offence and the cause of action for filing the complaint will arise. . . A combined reading of sections 138 and 142 makes it clear that cause of action within the meaning of section 142 (c) arises and can arise only once. 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. "