IMPORTANT POINT
More then one cause of action or, the same chequeis not contemplated or envisaged under chapter XVII of negotiable Instruments Act.1881.

Thomas. J. –In view of the confluting views on interpretation of section 138 of the negotitable Instuments Act, 1881 (for short “the Act”), Thulaasidas. J. has referred this casssse to adivision bench . Balakrishan, J. has held in Mahadevan sunil kumar v. Bhadran1 that “it is clear that cause of action for filing the complanint may arise on servel occasions and the payee or holder in due course is entiled to present the cheque at any time within a period of six months from the data on whioch it was drawen an for filing complaint he should have served notice of such dishounest to the drawer, the payee or holder in due course can make a second presentation of the chequee and if other comditions are fulfilled, he can launch a complaint on the basic of the second dishonuer of the chequee as the cheque would remain valid for a period of six months”. Padmanbhan, L. without noticing the descution inb Mahadevan sunil kumar’s case took contray view in this order dated 18-2-1991(Cri R.P. No. 480/90).

2. Facts of this case are the following: Respodent herein filied a complaint before a Judical Magistate of first class alleging that the petitioner has committed the offence under section 138 of the complanint (hereinafter) will be reffered to as the complanint that a cheque drawen on Vijaya Bank for Rs. 10,000/- was issued by the petitioner on 4-11-1989 in favour of the complaint and on 6-11-1989 the cheque was returned dishounerd by the drawer bank for the grouned “refer to trhe drawer”. Notice issued by the complainant was received by the petitioners on 23-11-1989. But no payment was made pursuant to the said notice Complainant again presented the said cheque on 15-1-1990 before the drawee bank and was again dishonored. A fresh notice was issued to the petitioner which he received on 13-2-1990. As no payment was made by the petitioner thereafter too, the complaint was filed on 12-3-1990. Learned Magistrate took the complaint on file and issued process to the petitioner. This Criminal Miscellaneous Case has been filed by the petitioner to quash the complaint.

3. The only ground urged by the petitioner is that respondent cannot have a second cause of action on the same cheque when once he had failed to institute a complaint on the strength of the first cause of action.

4. Section 138 of the Act creates a new offence based on a cheque returned unpaid and subject to certain conditions. The said section and its ancillary provisions have been included in-Chapter :XVII of the Act. The said Chapter Was introduced in the Act on 1-4-1989. The offered as per section 138 is the drawer of the cheque One of the conditions to constitute the offence is that the cheque should have been presented to the bank within six months of its issue. Another condition is that the payee should have made a demand for payment by registered notice after the cheque is returned unpaid. Third condition is that the drawer should have failed to pay the amount within 15 days of receipt of notice. Unless the cheque is returned unpaid due to insufficiency of amount of money standing to the credit of the drawer or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank, section 138 of the Act is not attracted. Section 139 of the Act casts a presumption that holder of a cheque has received the same towards discharge of a liability. Section 140 of the Act precludes the drawer from pleading that he had no reason to believe that the cheque would be dishonored. A complaint can be filed only by a payee or holder in due course; of the cheque. Section 142 imposes a further restriction that no complaint can be filed after one month of the date on which the cause of action arose.

5. From the scheme of the provisions in Chapter XVII of the Act two features loom large.

First is that more than one cause of action on the same cheque is not contemplated or envisaged. Second is, institution of prosecution cannot be made after one month of the cause