Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2010 Supreme(SC) 32

2010 (1) Supreme 55
SUPREME COURT OF INDIA
Altamas Kabir and G.S. Singhvi, JJ.
Tameeshwar Vaishnav — Appellant
versus
Ramvishal Gupta — Respondent
Criminal Appeal No. 46 of 2010
(@ Special Leave Petition (Crl.) No. 6676 of 2008)
Decided on : 8-01-2010

Advocates Appeared:
For the Appellants : Dr. Rajesh Pandey, Mahesh Pandey, Ms. Mridula Ray Bharadwaj, Advs., with him for the Appellants.
For the Respondents:V. Sridhar Reddy, A.S. Rao, Ram Swarup Sharma, Advs., for the Respondents.

IMPORTANT POINT
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.

Headnote:Negotiable Instruments Act,1881 – Clause (b) of Section 138-Issuance of notice under clause (b) of Section 138 of Act,1881,which was received by drawer of cheque – Whether payee or holder of cheque, who did 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 same cheque and, thereafter, proceed to file a complaint under Section 138 of the Act – 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, whichever is earlier – Clause (b) indicates that the payee or the holder in due course of cheque, has to make demand for the payment of said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of 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 cheque fails to make the payment of said amount of money to payee or to holder in due course of the cheque within 15 days of receipt of said notice, payee or holder of cheque may file a complaint under Section 142 of the Act in the manner prescribed – In the instant case, 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 complaints were filed beyond period of limitation and Magistrate erred in taking cognizance on the complaints filed on basis of the second notices issued on 7th June,2006 – Similarly, High Court was also wrong in affirming the order of the learned Magistrate – Orders of Magistrate taking cognizance on Complaint along with orders of High Court impugned in these appeals,set aside – Appeals allowed. (Paras 14 to 18)
       Facts of the Case :
        Issue in consideration in present Appeals was whether after the notice issued under clause (b) of Section 138 of the Negotiable Instruments Act, 1881 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 same cheque and, thereafter, proceed to file a complaint under Section 138 of the Act.
       Findings of the Court :
        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, whichever is earlier. Clause (b) indicates that the payee or the holder in due course of cheque, has to make demand for the payment of said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of 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 cheque fails to make the payment of said amount of money to payee or to holder in due course of the cheque within 15 days of receipt of said notice, payee or holder of cheque may file a complaint under Section 142 of the Act in the manner prescribed. In the instant case, first notices were received by the Appellant on 14th June,2006, whereas the complaints were filed on 10th July, 2006.Hence held that complaints were filed beyond period of limitation and Magistrate erred in taking cognizance on the complaints filed on basis of the second notices issued on 7th June,2006. Similarly, High Court was also wrong in affirming the order of the learned Magistrate. Orders of Magistrate taking cognizance on Complaint along with orders of High Court impugned in these appeals were set aside. Appeals were allowed.
       Result : Appeals allowed.

JUDGMENT

Altamas Kabir, J. —

1. Delay of 31 days and 39 days in re-filing the Special Leave Petitions is condoned.

2. Leave granted.

3. 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 Act.

4. 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.) 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. Although, the notice was duly served upon the 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.

5. 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 Applications holding that the grounds raised therein could be decided after evidence was led by the parties.

6. 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.

7. 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 second notice in regard to the self-same cheque was barred under the proviso to Section 138 of the Act. In support of his said submission, the learned counsel firstly referred to and relied on the decision of this Court in

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2010 Supreme(SC) 32

2010 (1) Supreme 55SUPREME COURT OF INDIAAltamas Kabir and G.S. Singhvi, JJ. Tameeshwar Vaishnav — AppellantversusRamvishal Gupta — RespondentCriminal Appeal No. 46 of 2010(@ Special Leave Petition (Crl.) No. 6676 of 2008)Decided on : 8-01-2010

IMPORTANT POINT 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.

Cases Referred (3)

2010 (1) Supreme 55
SUPREME COURT OF INDIA
Altamas Kabir and G.S. Singhvi, JJ.
Tameeshwar Vaishnav — Appellant
versus
Ramvishal Gupta — Respondent
Criminal Appeal No. 46 of 2010
(@ Special Leave Petition (Crl.) No. 6676 of 2008)
Decided on : 8-01-2010

IMPORTANT POINT
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.