IMPORTANT POINT
The second prosecution of cheque within period of validity in valid u/s. 138 of Negotiable Instruments Act. But the complaint has to be filed only once and that too taking into account limitation on the result of subsequent last presentment of cheque.

G. Radhakrishna Rao, J. - These two Criminal Petitions are filed under sections 482 of the Criminal. Procedure Code for quashing C.C. No. 143 of 1992 on the file of the XI Metropolitan Magistrate,

Secunderabad, and C.C. No. 481 of 1991, on the file of the II Additional Munsif- Magistrate, Tirupathi.

2. The accused in C.C. No. 143 of 1992, on the file of the XI Metropolitan Magistrate, Secunderabad, are the petitioners in Criminal Petition No. 689 of 1992 while the accused in C.C: No. 481 of 1991, on the file of the II. Additional Munsif Magistrate, Tirupathi, is the petitioner in Criminal Petition No. 967 of 1992. Respondent No. 1 in both the Criminal Petitions are the complainants in C.C. No. 143 of 1992 and C.C. No. 481 of 1991, respectively.

3. These petitions have come up for hearing before this Bench on a reference made by our learned brother, Iyyapur Panduranga Rao, J. in Criminal Petition No. 967 of 1992 and by one of us (i.e.. G. Radhakrishn'a Rao, J.) in Criminal Petition No. 689 of 1992.

4. The complaints, in both the Calendar Cases, have been filed under section 138 read with section 142 of the Negotiable Instruments Act, 1881 (Act No. 26 of 1881), here in after referred to as "the Act".

5. As the point of law involved in both the Criminal Petitions is one and the same, they have been heard together and a common order is being passed.

6. A brief reference to the facts in both the petitions is necessary for deciding the points of law involved therein.

7. The case, 'Set up by the 1st respondent in criminal Petition No. 967 of 1992. (who is the complainant in C.C. 481 of 1991), is briefly as follows:- The petitioner (accused) issued a cheque, bearing to. 2271604 for Rs. 33,750/- on October 23, 1990 in favour of the first respondent on M.G. Road Branch of Indian Bank, Bangalore. The said cheque was presented for collection but the same was bounced. Consequently, the first respondent (complainant) contacted the petitioner on, telephone, whereupon he was advised to represent the said cheque on or after February 25, 1991. Accordingly the 1st respondent represented the cheque on February 28,1991 but, once again, the same was bounced with the endorsement "referred to drawer" and the same was accordingly intimated to the 1st respondent on March 11, 1991 by registered post. Thereupon, the 1st respondent issued a notice on March 14, 1991 calling upon the petitioner to pay the amount covered by the cheque in question. Since there was, no reply from the petitioner, the 1st respondent filed C.C. No. 481 of 1991, under section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code against the petitioner accused.

8. As already stated, Criminal. Petition No. 967 of 1992 has been filed by the petitioner accused under section 482 of the Criminal Procedure Code alleging that even if taking all the allegations at their face value as true, they do not constitute an offence within the meaning of section 138 of the Act. It is contended on behalf of the petitioner that the endorsement "refer to drawer" does not necessarily indicate insufficiency of fund alone and in such circumstances it cannot be said that an offence under section 138 of the Act has been made out by the 1st respondent. Reliance was placed on the decisions reported in M/s. Union Road Ways (P) Ltd. & another v. M/s. Shah Ramanlal Stesh Kumar & another1 and Hunasikathimath v. State of Karnataka2.

9. It is further contended that when once the cheque was not honoured, there cannot be a second cause of action relating to the same cheque and the proceedings under section 138 of the Act on the endorsement "refer to drawer" are not sustainable. It is next contended that the forwarding of the complaint under section 156(3) of the Criminal Procedure Code to the Police is illegal and without jurisdiction for the reason that the payee has to file a private complaint only under section 200 of the Criminal Procedure Code where an offence under section 138 of the Neg