NAGDEV SONS Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) In view of the diversion of opinion in two cases decided by learned single Judges viz. in the case of Smt. Kamal Sharma v. State of U.P., 1995 All Cri C and in the case of Mirza Mansoor Beg v. Riyazuddin, 1996 ACC (Cri) 22, Hon. J. C. Mishra, J. has referred the matter to the Division Bench to resolve the conflict between the two decisions of learned single Judge of this Court.

(2.) The controversy is in respect of Section 138 of the Negotiable Instruments Act. The question involved is that if a party has issued a cheque to the other party and the cheque has been returned by the bank without obtaining paymentwith the request to send the cheque for encashment again and then the cheque is presented and still the payment is not obtained the notice under Section 138 of the Negotiable Instruments Act would be necessary within 15 days from the return of the cheque for the first time or whether limitation would start running from the subsequent dishonour of the cheque without obtaining payment. While Hon. Rahim, J. of this Court in the case of Smt. Kamal Sharma v. State of U.P. held that the cheque if presented and dishonoured on each occasions enables the drawee of the cheque to issue notice within 15 days from the date of last presentation to launch prosecution under Section 138 of the Negotiable Instruments Act, Hon. N. B. Asthana, J. relying upon a Division Bench judgment of the Kerala High Court in the case of Kumaresan v. Ameerappa, (1992) 1 Crimes 23 held that cause of action arose only on first representation and the limitation started running from that date which could not be stopped by presenting cheque again so as to have fresh cause of action and fresh limitation.

(3.) The question was initially referred in the case of Nagdeo Sons and others v. State of U.P. and others (Crl. Misc. Application No. 3000 of 1996) connected with DCM Sri Ram Industries Ltd. v. Nagdev Sons and others (Crl. Revision No. 636 of 1996). Subsequently one more Cril. Misc. Application No. 120 of 1998 of Ram Babu Gupta came up before Hon. J.C. Mishra, J. involving the same question and he while admitting this Criminal Misc. Application of Ram Babu Gupta directed this case also to be listed before this Bench along with the first case mentioned earlier. The earlier two cases arose out of common orders passed by the courts below whereas the matter of Ram Babu Gupta arose from a different case and from a different district. That is why both the cases are before us.