SURESH KUMAR Vs. OM PARKASH

JUDGEMENT

(1.) - This is a revision and has been directed against the judgment dated 30. 10. 1995 passed by Sub-Divisional Magistrate, Samana (Patiala), who dismissed the complaint under Section 138 of the Negotiable Instruments Act filed by shri Suresh Kumar.

(2.) FEW facts may be recapitulated : A cheque was issued by the respondent Om parkash for a sum of Rs. 83154. 92 in favour of the complainant Shri Suresh Kumar, who presented this cheque for collection on 8. 10. 1994 and it was dishonoured as referred to the drawer. The complainant did not serve any notice nor he filed any complaint. He preferred to present the cheque again for collection on 20. 10. 1994 and this time also the cheque bounced. The complainant did not take any action. Third time he presented the cheque on 29. 3. 1995 but the cheque could not be encashed. This time the complainant found proper to issue notice as required under law and this notice was issued on 4. 4. 1995. The complaint under Section 138 of the Negotiable Instruments act was filed in the Court of Judicial Magistrate on 19. 4. 1995. The learned magistrate after hearing the parties dismissed the complaint and the operative portion of the order of the learned Magistrate is contained in paras No. 5 to 11 of the order dated 30. 10. 1995, which I would like to incorporate as under :-"5. I have heard the learned counsel for the parties and carefully perused the records on this application. 6. The learned counsel for the accused has referred to the copy of the reply to the notice under Section 138 of the Negotiable Instruments Act dated 10. 4. 1995 addressed to Sh. Karamjit Singh, Advocate along with copy of demand draft of the disputed amount dated 10. 4. 1995 in favour of the complainant drawn on Punjab national Bank, Malkana Block Samaba along with the report of the postal employee that the addressee did not meet despite so many attempts. These are, however, the questions of defence which cannot be considered at this stage of the case, in which the accused has been summoned after recording the preliminary evidence in the case. 7. The other two points raised by the accused are purely legal in nature and go to the root of the complaint. The cheque in question in original proved during the preliminary evidence is Ex. A5 dated 1. 10. 1994. The cheque was presented for clearance on 29. 10. 1994 and 29. 3. 1995. There is, however, no such controversy about the cheque being presented more than once as per the contents of the written reply. The case of the accused is that there is no bar for presenting cheque more than once within a period of six months i. e. period of its validity. However, there was no such allegation in the complaint itself that the cheque was presented more than once and dishonoured. The complainant thus concealed the material facts from the court. Anyhow, the law is very clear on the subject. Our Hon'ble high Court has held in Gulshan Rai v. Darshan Lal, 1994 (3) RCR (Crl.) 500 : 1995 (1) Civil Court Cases 55 : [vol. 2 DCTC 110], that no prosecution can be lodged against the accused on the basis of cheques again presented, but not honoured as the complainant could not have second cause of action on the same cheque. Same view has been taken by our Hon'ble High Court in M/s. K. D. Sales corporation, Gur Mandi, Jalandhar City v. The Morinda Cooperative Sugar mills Ltd. , Morinda, 1994 (1) RCR (Crl.) 138 : 94 (1) SLJ Reports (Pb. and Hry.)449: [vol. 1 DCTC 675]. The Hon'ble High Court held that once cause of action has arisen, the limitation will begin to run. The limitation cannot be stopped by presenting the cheque again so as to have a fresh cause of action and fresh limitation. No contrary ruling of our Hon'ble High Court has been cited. 8. The learned counsel for the complainant, however, referred the judgment of the hon'ble Kerala High Court in case Lakshmanan v. Sivarama Krishnan, 1995 (2)Recent Criminal Reports 23 : [vol. 2 DCTC 184] but this court is bound by the judgment of the Hon'ble High Court of Punjab and Haryana. 9. The offence under Section 138 of the Negotiable Instruments Act as per clause (c) would be made out only if the drawer of such cheque failed to make payment of the said amount of money to the payee, or as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. This is only point of calculation and for that matter reference can also be made to the judgment of Hon'ble Kerala High Court in Poornasree Agencies v. Universal enterprises, 1995 (1) Civil Court Cases 342 : [vol. 2 DCTC 176] (Kerala) where the point of limitation was under consideration. In that case notice was received on 9. 6. 1993 by the accused. It was held that the 15 days time is to be counted from 10. 6. 1993 and would expire on 24. 6. 1993. The offence would commence from 25. 6. 1993 and the complaint could be filed within one month therefrom. The complainant in the preliminary evidence has proved the acknowledgement due in token of the delivery of notice to the accused. It is Ex. A3 showing the notice to have been received by accused on 4. 4. 1995. The allegations to this effect made in the application of the accused is also not denied by the complainant, in the written reply. By making simple calculation, the offence would be made out only on the expiry of 19th day of April, 1995. Undisputedly, this complaint was filed on 19. 4. 1995 when the offence was not made out. Faced with above situation, learned counsel for the complainant had nothing to say against the legal pleas raised by the accused. 10. The next question that arose for consideration is whether this Court can drop the proceedings at this stage of the case where the accused puts in appearance in consequence of the summons issued against him after finding sufficient grounds by recording preliminary evidence. The Apex Court has laid down the settled law in K. M. Methew v. State of Kerala and another, 1992 (2) P. L. R. 35. It was held that it is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings after re-consideration of the complaint that there is no offence for which the accused can be tried. It is the judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. Our Hon'ble High court has held in the latest judgment cited in Dr. T. N. Chaturvedi v. Gurmail singh, 1994 (3) RCR (Crl.) 517: [vol. 2 DCTC 118] that the summoning order is only an interim order and not a judgment. It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused. 11. From the discussion made by me above and on the facts of the case, it is established that no offence is made out against accused for which he could be tried because when the complaint was instituted the offence had not been completed nor the cognizance of the offence could be taken after presenting the cheque for the second time when the period of limitation for service of the notice of dishonour as prescribed under the law has already expired. The proceedings against the accused, therefore, stands dropped and the surety furnish by him is also discharged. "

(3.) AGGRIEVED by above order passed by the learned Magistrate the petitioner has filed the present petition, which I am disposing of.