PARMESHWAR LAL Vs. MOHAN SINGH AND ANOTHER

JUDGEMENT

(1.) The instant appeal has been preferred on behalf of the appellant complainant challenging the judgment dated 15.12.2010 passed by the learned Judicial Magistrate, First Class, Churu in Criminal Case No. 440 of 2007 (367A/2010), whereby the complaint filed by the appellant under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the NI Act) was rejected and the respondent No. 1 Mohan singh was acquitted from the charge under Sec. 138 of the NI Act.

(2.) Learned counsel for the appellant submitted that a very short controversy has been raised in this case for the consideration of this Court. Learned counsel urged that the learned Magistrate acquitted the respondent No. 1 Mohan Singh from the charge under Sec. 138 of the NI Act on the soie ground that the complaint in this case was filed on the basis of a second demand notice issued by the complainant. Learned counsel submitted that the view taken by the learned Trial Court was based on a decision of the Honourable Apex Court rendered in the case of Tameshwar Vaishnav Vs. Ramvishal Gupta, reported in (2010) 2 SCC 329 : 2010 (1) NIJ 83 (SC) . Learned counsel submitted that the view expressed by the Division Bench of the Honourable Apex Court in Tameshwar Vaishnav's case (supra) was considered and overruled by a three Judges Bench of the Honourable Apex Court in the case of MSR Leathers v J.S. Palaniappan & Anr., reported in 2012 (2) NIJ 338 (SC) : (2013) 1 SCC 177 . Learned counsel urged that in the aforesaid case, the Honourable Apex Court has unequivocally held that there is no illegality in a prosecution based upon second or successive dishonour of the cheque as long as the prosecution satisfies the requirements stipulated in proviso to Sec. 138 of the NI Act. Learned counsel submitted that the Honourable three Judges Bench of the Honourable Apex Court answered a reference in the aforesaid decision and held that the view taken by the two Judges Bench of the Honourable Apex Courts in the case of Sadanandan Bhadran Vs. Madhava Sunil Kumar, (1998) 6 SCC 514 : 2009 (1) NIJ 61 (SC)[NOC] , that a prosecution basedon a second default or a second notice was illegal and did not lay down a good law. Learned counsel urged that the decision of the Honourable Apex Court in the case of Tameshwar Vaishnav's (supra) was also based on the view expressed in Sadanandan Bhadran's case (supra) and thus, the same also stands impliedly overruled by the decision of the Honourable Apex Court in the case of MSR Leathers (supra) while answering the reference. Learned counsel thus prayed that the instant appeal be accepted and the matter be remanded back to the learned Trial Court for fresh consideration on merits.

(3.) Per contra, learned counsel appearing on behalf of the respondent No. 1 vehemently opposed the submissions advanced by learned counsel for the appellant and contended that the learned Trial Court did not commit any illegality or irregularity in acquitting the respondent No. 1 from the charge under Sec. 138 of the NI Act. Learned counsel for the respondent No. 1 contended that when the Trial Court was deciding the matter, the law prevalent at that point of item was the law propounded by the Honourable Apex Court in Sadanandan Bhadran's and Tameshwar Vaishnav's cases (supra), as such, the judgment of the learned Trial Court acquitting the respondent No. 1 from the charge under Sec. 138 of the NI Act does not call for any interference by this Court.