SHASHIKANT RAMCHANDRA JADHAV Vs. RAJKUMAR VIJAYKUMAR PATIL

JUDGEMENT

(1.) HEARD learned advocate for the applicant in support of this application under sub section 4 of section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code of 1973"). The applicant filed a complaint alleging commission of offence under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act of 1881"). The case made out by the applicant in the complaint is that the cheque dated 27th September 2003 was issued by the first respondent in the sum of Rs.4,53,002/- in discharge of a legally recoverable debt or liability. The said cheque was dishonoured on 30th January 2003 on the ground that funds were insufficient. On the direction of the first respondent the applicant redeposited the cheque on 10th March 2003. The said cheque was returned dishonoured on 13th March 2003 on the ground of insufficient funds. A demand notice dated 17th March 2003 was issued by the applicant and thereafter a complaint was filed. The learned Judge has passed an order of acquittal on finding that on the basis of first dishonour on 31st January 2003, the applicant admittedly issued a notice of demand dated 6th February 2003 which was replied to by the first respondent. The learned Judge found that the complaint was based on second notice issued by the applicant on the basis of second dishonour. In view of the law laid down by the Apex Court in the case of Sadanandan Bhadran Vs/ Madhavan Sunil Kumar (1998[6]-SCC-514), the learned Judge has passed an order of acquittal.

(2.) THE submission of the learned counsel for the applicant is that it was not established that the first notice dated 6th February 2003 was a valid notice giving rise to a cause of action for filing a complaint under section 138 of the said Act of 1881. His submission is that unless it is proved by the first respondent that the said notice was a valid notice giving rise to a cause of action, the decision in the case of Sadanandan Bhadran (supra) will have no application. He submitted that unless it was established that the cause of action arose earlier on the first dishonour of the cheque, the complaint filed by the applicant could not have been thrown out. He submitted that in any case, in view of amendment to section 142 of the said Act of 1881 which was brought into force w.e.f. 6th February 2003, the learned Judge could have extended the period of limitation for filing the complaint on the basis of first notice and entertained the complaint. His submission is that after process was issued, at the fag end of the trial the argument regarding bar of limitation could not have been allowed to be canvassed by the first respondent-accused.

(3.) THE present complaint is not based on the cause of action which accrued on the basis of first dishonour and the notice dated 6th February 2003. Therefore, the submission of the learned counsel for the applicant that the period of limitation could have been extended from the date of receipt of first notice cannot be accepted as the cause of action pleaded by the applicant in the complaint is based on subsequent notice dated 17th March 2003 issued on the basis of second dishonour of the cheque.