Vaishnav Vs. Ramvishal Gupta  INSC 26 (8 January 2010)
APPELLATE JURISDICTION CRIMINAL APPEAL NO.46 OF 2010 (@ SPECIAL LEAVE PETITION
(CRL) NO.6676 OF 2008) Tameeshwar Vaishnav .. Appellant Ramvishal Gupta .. Respondent
CRIMINAL APPEAL NO. 47 OF 2010 (@ S.L.P. (CRL.) NO.6593 OF 2008)
Delay of 31 days and 39 days in re-filing the Special Leave
Petitions is condoned.
The short point for decision in these Appeals is whether after the
notice issued under clause (b) of Section 138 of the Negotiable Instruments
Act, 1881 (hereinafter referred to as "the Act"), is received by the
drawer of the cheque, the payee or holder of the cheque, who does not take any
action on the basis of such notice within the period prescribed under Section
138 of the Act, is entitled to send a fresh notice in respect of the same
cheque and, thereafter, proceed to file a complaint under Section 138 of the
In S.L.P.(Crl.) No.6676 of 2008 arising out of Criminal Case
No.399 of 2006 pending before the Additional Chief Judicial Magistrate,
Khairagarh, the Respondent had filed a complaint under Section 138 of the Act,
for dishonour of a cheque dated 16th March, 2006, bearing No.0864961 for
Rs.40,000/- drawn on the Bank of Maharashtra, Khairagarh Branch, in favour of
the Respondent. S.L.P. (Crl.) 3 No.6593 of 2008 is directed against the
judgment of the High Court dated 27th March, 2008, in Crl. Revision No.130 of
2006 arising out of Criminal Case No.339 of 2006 pending with the Additional
Chief Judicial Magistrate, Khairagarh, in respect of a similar cheque dated
20th March, 2006, bearing No.0864962 amounting to Rs.40,000/- drawn on the Bank
of Maharashtra, Khairagarh Branch, in favour of the Respondent. As stated
hereinabove, both the said cheques were dishonoured on the ground of
insufficient funds. The cheque issued on 20th March, 2006, bearing No.0864962
was dishonoured on 22nd March, 2006, on the ground of insufficient funds. Similarly,
cheque bearing No.0864961 dated 16th March, 2006, was dishonoured on 16th
March, 2006. Consequently, the Respondent issued notices as contemplated under
Clause (b) of the proviso to Section 138 of the Act asking the Appellant to
make payment of the cheque amounts within 15 days.
the notice was duly served upon the 4 Appellant, the Respondent did not take
any steps to file the complaint within the period prescribed in Section 142 of
the Act. On the other hand, the Respondent sent a second notice to the
Appellant in respect of the two cheques on 7th June, 2006, and, ultimately,
when no response was received to the same, he filed two separate complaints
before the learned Additional Chief Judicial Magistrate, Khairagarh, District
Rajanandgaon, Chhattisgarh, on which process was issued by the learned
Magistrate after recording the statement of the respondent- complainant.
Against such order issuing process on both the complaints, the
Appellant filed Criminal Revision Nos.130 and 131 of 2006 in the Court of the
Additional Sessions Judge, Khairagarh, District Rajanandgaon, on 21st November,
2006. On 19th March, 2007, the learned Additional District Judge, Khairagarh,
dismissed both the Revision 5 Applications holding that the grounds raised therein
could be decided after evidence was led by the parties.
On 15th May, 2007, the Appellant filed Crl. Misc. Petition Nos.177
of 2007 and 178 of 2007 before the Chhattisgarh High Court under Section 482
Cr.P.C. for quashing the order passed by the Additional Sessions Judge,
Khairagarh, on 19th March, 2007. The High Court ultimately dismissed both the
Petitions by the orders impugned in these Appeals.
On behalf of the Appellant, it was contended that the learned
Magistrate had erred in taking cognizance on the complaints filed by the
Respondent, since the complaints stood barred under the provisions of the
proviso to Section 138 of the Act. It was urged that when the complainant-
respondent did not take any action on the basis of the first notice issued on
30th March, 2006, a 6 second notice in regard to the self-same cheque was
barred under the proviso to Section 138 of the Act.
support of his said submission, the learned counsel firstly referred to and
relied on the decision of this Court in Sadanandan Bhadran vs. Madhavan Sunil
Kumar [(1998) 6 SCC 514], wherein this Court held that the cause of action to
file complaint on non-payment despite issue of notice, arises but once. Another
cause of action would not arise on repeated dishonour on re-presentation.
counsel pointed out that this Court also held that while the payee was free to
present the cheque repeatedly within its validity period, once notice had been
issued and payments not received within 15 days of the receipt of the notice, the
payee has to avail the very cause of action arising thereupon and file the
complaint. Dishonour of the cheque on each re-presentation does not give rise
to a fresh cause of action. Taking note of the amendment to Section 142(b) of
the Act, this Court 7 also held that the complaint would have to be filed
within one month from the day immediately following the day on which the period
of 15 days from the date of receipt of the first notice by the drawer expires.
Learned counsel then referred to another decision of this Court in
Prem Chand Vijay Kumar vs. Yashpal Singh & Anr. [(2005) 4 SCC 417], wherein
the view expressed in Sadanandan Bhadran's case (supra) was reiterated. Learned
counsel submitted that in view of the aforesaid decisions of this Court which
authoritatively explained that cause of action arises only once on the issuance
of notice upon dishonour of the cheque and receipt thereof by the accused, the
learned Magistrate had erred in law in taking cognizance on the basis of the
second notice whereas the cause of action had arisen under the first notice
dated 30th March, 2006, which clearly indicates that the complaint 8 filed on
10th July, 2006, was well outside the period of limitation prescribed in the
proviso to Section 138 of the Act.
Learned counsel submitted that the subsequent order passed by the
High Court affirming the order of the Magistrate issuing process suffers from
the same vice and both the orders were, therefore, liable to be set aside.
The submissions made on behalf of the Appellant were vehemently
opposed on behalf of the Respondent on the ground that having regard to the
assurance given by the Appellant to the Respondent and the request made to
present the cheque for the second time, even after issuance of the first notice,
it must be held that the delay, if any, in filing the complaint had been
condoned by the learned Magistrate in keeping with the proviso to Section
142(b) of the Act.
Learned counsel submitted that the decisions cited on behalf of
the Appellant had been 9 subsequently considered by this Court in S.L. Constructions
vs. Alapati Srinivasa Rao [(2009) 1 SCC 500], in which the decisions of this
Court in Sadanandan Bhadran's case (supra) and Prem Chand Vijay Kumar's case
(supra), had been noted and considered.
Learned counsel submitted that in view of the promise held out by
the Appellant and his request to present the cheque for the second time, the
Respondent had refrained from taking any action on the basis of the first
notice which was the cause of the delay in making the complaint. Upon issuance
of process, it must be held that the Court was satisfied that there was
sufficient cause for making the complaint after the prescribed period.
Learned counsel urged that having regard to the above, no
interference was called for with the order of the learned Magistrate taking
cognizance 10 or the order of the High Court affirming the said order.
We have given our anxious thought to the submissions made on
behalf of the respective parties, having regard to the apparently different
views expressed in Sadanandan Bhadran's case (supra), Prem Chand Vijay Kumar's
case (supra) and the latest decision in S.L. Construction's case (supra).
On careful scrutiny of the decision in S.L. Construction's case
(supra), it would appear that the facts on the basis of which the said decision
was rendered, were different from a case of mere presentation and dishonour of
the cheque after issuance of notice under the proviso to Section 138 of the Act.
While the decision in Sadanandan Bhadran's case (supra), clearly spells out
that a cheque may be presented several times within the period of its validity,
the cause of action for a 11 complaint under Section 138 of the Act arises but
once, with the issuance of notice after dishonour of the cheque and the receipt
thereof by the drawer. The same view has been reiterated in Prem Chand Vijay
Kumar's case (supra). The only distinguishing feature of the decision in S.L. Construction's
case (supra) is that of the three notices issued, the first two never reached
the addressee. It is only after the third notice was received that the cause of
action arose for filing the complaint. In effect, the cause of action for
filing the complaint in the said case did not arise with the issuance of the
first two notices since the same were never received by the addressee.
The provisions of Section 138 and clauses (a), (b) and (c) to the
proviso thereof indicate that a cheque has to be presented to the bank within a
period of six months from the date on which it is drawn or within the period of
its validity, 12 whichever is earlier. Clause (b) indicates that the payee or
the holder in due course of the cheque, has to make demand for the payment of
the said amount of money by giving a notice in writing to the drawer of the
cheque within 30 days of the receipt of information by him from the bank
regarding the return of the cheque as unpaid and clause (c) provides that if
the drawer of the cheque fails to make the payment of the said amount of money
to the payee or to the holder in due course of the cheque within 15 days of
receipt of the said notice, the payee or the holder of the cheque may file a
complaint under Section 142 of the Act in the manner prescribed.
In the instant case, it is clear that the first notices were
received by the Appellant on 14th June, 2006, whereas the complaints were filed
on 10th July, 2006. It must, therefore, be held that the complaints were filed
beyond the period of 13 limitation and the learned Magistrate erred in taking
cognizance on the complaints filed on the basis of the second notices issued on
7th June, 2006. Similarly, the High Court was also wrong in affirming the order
of the learned Magistrate.
The Appeals must, therefore, succeed and are, accordingly,
allowed. The orders of the learned Magistrate dated 13th July, 2006 and 17th
July, 2006, respectively, taking cognizance on the Criminal Complaint Nos.339
and 399 of 2006 along with the orders of the High Court impugned in these
appeals, are set aside.