DUJODWALA RESINS Vs. RAVI KANT MAJAJAN

JUDGEMENT

(1.) - The revision is directed against the order of Special Excise Mobile magistrate, Jammu, dated 10. 10. 1994, dismissing the complaint filed by the petitioner under section 138 of Negotiable Instruments Act, 1881 (hereinafter referred as the Act.)

(2.) THE facts which gave rise to this petition briefly are as under : -. The petitioner has supplied to the respondent resin and terpine material under various invoices valued at Rs. 11507/ -. In consideration thereof, the respondent issued a cheque dated 7. 5. 1993 in favour of the petitioner. The cheque, when presented, was dishonoured by the bank on 28. 5. 1993 in favour of the petitioner on account of insufficiency of funds. The petitioner, thereupon issued a notice dated 3. 6. 1993, calling upon the respondent to pay the amount within the prescribed period. However, the respondent did not make the payment. The petitioner, again presented the cheque to the Bankers, however, it was dishonoured again on account of insufficient funds vide memo dated 20. 9. 1993. The petitioner then issued a notice dated 23. 9. 1993 calling upon the respondent to make the payment within fifteen days of the receipt of the notice, which was duly served upon the respondent. The respondent failed to make the payment within the stipulated period of fifteen days and as such the petitioner filed the complaint in the court of trial magistrate on 22. 10. 1993. The learned Magistrate, on the basis of the statement of the petitioner, recorded in preliminary evidence and other documents, found a prima facie case made out against the respondent for an offence under section 138 of the Act and accordingly summoned him through bailable warrants. The respondents appeared in the trial court and filed an application for quashment of the complaint alleging therein that the cause of action in favour of the petitioner arose on 28. 5. 1993 when the cheque was dishonoured for the first time and in that regard the petitioner served notice dated 3. 6. 1993 upon the respondent demanding the amount, and the present complaint, which has been filed after the cheque was presented and dishonoured for the second time, was not maintainable and was time barred. The petitioner contested this application. He admitted the factual position as projected by the respondent but pleaded that the petitioner was within his right to present the cheque on any number of times within six months from the date of its issue and as such the present complaint, which was filed after the cheque was dishonoured for the second time, was well within time and was maintainable. The learned trial magistrate upheld the contentions of the respondent and dismissed the complaint of the petitionr, being time barred and not maintainable on the second cause of action. After hearing learned counsel for the parties at length. I feel that the approach of the trial court (sic) any infirmity and the revision petition deserves dismissal. The salient features of Section 138 of the Act are :

(3.) THERE is no dispute that the petitioner could present the cheque any number of times to the bankers within six months of the date of its issuance or within the stipulated period whichever is earlier, but I am not impressed with the contention of the learned counsel for the petitioner that as the petitioner was within his right to present the cheque for any number of times, within the prescribed period he could as such file the complaint on the second cause of action, when the cheque was dishonoured for the second time.