KISHAN LAL Vs. KRISHNA SALES

JUDGEMENT

(1.) IN both the cases, the order issuing process is being challenged with a common prayer to quash criminal proceedings pending against the petitioners. The petitioners raise following identical and important questions of law. (0 Whether a second complaint under Section 138 of the Negotiable Instruments act, 1981 (for short the Act) based on second cause of action on subsequent presentation of the cheque for encashment is maintainable? (ii) Whether service of the notice issued under clause (b) of Section 138 on the drawer of the cheque is essential to give a cause of action for filing a complaint for the offence under Section 138 of the Act ?

(2.) IN order to appreciate the controversy raised in these petitions, necessary facts may be stated which are as under : the complainant/non-petitioner, herein, filed two separate complaints on 3. 5. 1993, the Court of Additional Munsiff and Judicial Magistrate No. 8, Jaipur City, Jaipur, alleging therein that both the parties were engaged in the business of purchase and sale of papers and from 20. 2. 1991 to 4. 2. 1992 the petitioners purchased papers from his firm in the tune of Rs. 2,45,726/- through various bills and payments were made partly in cash and partly through cheques, the details of which have been given in the complaint. As per the complaint the following six cheques were issued by the petitioners in favour of the complainant towards the liability outstanding against them: <FRM>JUDGEMENT_1_DCR3_1997Html1.htm</FRM> The above cheques were presented in the Bank for collection, but the same were bounced with the endorsement "exceeds arrangement". The details about presentation of cheques and the dates of their dishonours have been given in paras 3, 4 and 5 of the complaint. Thereafter, the complainant gave notice to the petitioners on 7. 11. 1992 through his Advocate, Mr. Chandra Prakash Joshi, informing about dishonour of the cheques and asking them to make payment within two weeks from the date of receipt of notice. On receipt of notice, the same was replied by the petitioners on 23. 11. 1992 through their Advocate Mr. Ram Kishore Hemani. In reply they pleaded for deduction of certain amount for having returned 25 bundles of papers. Some other pleas were also taken, but they are not relevant to mention here. Then a complaint was filed on 23. 1. 1993 in the Court of the Addl. Munsiff and Judicial Magistrate No. 8, Jaipur city, Jaipur alleging therein that an offence under Section 138 of the Act was committed by the petitioners. However the said complaint was dismissed on 25. 2. 1993 on the ground of limitation.

(3.) AFTER dismissal of the complaint, the aforesaid cheques were re- presented in the Bank for collection but they were again dis-honoured with the remark "refer to drawer". A fresh notice was again given to the petitioners on 13. 4. 1993 through Shri bhagwan Sahai, Advocate, but the same was returned unserved with the endorsement "receiver has left the shop". The complaint, thereafter, filed two fresh complaints as stated earlier in respect of three cheques each. Criminal Case No. 421/93 relates to cheques No. 389174, 432000 and 424309 and Criminal Case No. 422/93 relates to cheque Nos. 389171, 389172 and 389173 on the file of the Magistrate. The learned magistrate after taking cognizance of the offence and recording sworn statements of the complainanant and the witness Arun Misra, issued process against the petitioner in both the cases. These petitions arise out of these criminal cases.