CALCUTTA HIGH COURT
Gitesh Ranjan Bhattacharya, J.
M/s. Ancon Engineering Co. (P) Ltd. & Anr. - Petitioners
versus
Amitava Goswami - Opp. Party
C.R. No. 2532 of 1992
Decided on 17.2.1993
Counsel for the parties:
For the Petitioner - Biswanath Sanyal & Keya Banerjee.
For the Opp. Party - Sunrit Deb and AX. Ghosh.

IMPORTANT POINT
The payee can prosecute the drawer of the cheque on the basis of a presentation of the cheque in the hank which has culminated into a cause of action for him under clause (c) of the proviso to section 138 Negotiable Instruments Act and any earlier abortive presentation of the cheque is to be kept out of consideration for the purpose of application of sec. 138.

Headnote:Negotiable Instruments Act, 1881 - Sections 138 and 142 - Interpretation of; - Cheque returned with the remark funds insufficient Payee can prosecute the drawer of the cheque on the basis of a presentation of the cheque which has culminated into a cause of action for him under clause (c) of the proviso to sec. 138 - Cause of action for filing the complaint arises on the failure of the drawer to make payment of the demand amount on the expiry of fifteen days from the date of receipt of the notice - Any part-payment made by the drawer will not affect the cause of action of the payee to file a complaint.

       Held: It will have to be seen as-to whether there has been a failure on the part of the drawer of the cheque to make payment of the cheque amount within fifteen days of the receipt of the notice of demand for payment given by the payee under clause (b) of the proviso to section 138 which notice must have been preceded by receipt of information within fifteen days prior to the giving of such notice that the cheque had been dishonoured on presentation to the bank. Such presentation of the cheque to the bank however must have occurred within six months from the date of the cheque or within the period of its validity, whichever is earlier irrespective of the question whether there was presentation of the cheque on any earlier occasion. The phraseology of the proviso to section 138 in the form 'Provided that nothing contained in this section shall apply unless certain eventualities enumerated thereafter would occur within the time demarcations and in the sequence mentioned therein, indicates that the tender and dishonour of cheque by the bank will be of no application and therefore of no consequence or impact in the matter of application of section 138 where the same has not culminated in a cause of action under clause (c) to the proviso. It is therefore, evident that only such tender and dishonour of the cheque will be reckoned which has culminated into a cause of action under clause (c) by following the course prescribed in section 138. There is nothing in section 138 or in the decision of the Kerala High Court in Kumaresan v. Ameerappa (supra) which can lend support to the argument of the learned Advocate for the petitioner that section 138 contemplates and prescribes presentation of the cheque to the bank once only and not more than once. As regards presentation of the cheque in the bank for the purpose of prosecution under section 142 the only limitation prescribed by section 138 is that such presentation on which the complaint seeks to base the prosecution must have occurred within six months from the date on which the cheque was drawn or within the period of its validity, whichever was earlier. Presentation within time which following the multi-stage procedure of section 138 has culminated into a cause of action for the complainant under clause (c) of the proviso to section 138 for prosecuting the drawer under section 142 alone will be taken into consideration irrespective of the question whether there was any earlier abortive presentation of the cheque in the bank not culminating or ripening into a cause of action. But once the cause of action has arisen and matured under clause (c) of the proviso to section 138, obviously the complainant payee has to prosecute, if at all, on the basis of such cause of action within one month and he will not be free to create a fresh cause of action on the selfsame cheque. In the present case only one cause of action matured under clause (c) of the proviso to section 138 and the complainant started the prosecution on the basis of the same. There was no plurality of cause of action. (Para 5)

       Further held: The expression 'the said amount of money' as used in both the clauses (b) and (c) of the proviso to section 138 makes it clear that the drawer will have to make payment of the entire amount of money pursuant to the notice given by the payee and failure to pay the entire amount of money as mentioned in the cheque and the notice will constitute an offence punishable under section 138 and any part-payment even, if made, will be of no avail to the drawer of the cheque for evading prosecution. If part-payment could protect the drawer of the cheque from prosecution under section 138 this would have been a very handy and convenient device for an unscrupulous is person to frustrate the very purpose of section 138. In that case tender of any paltry and insignificant amount of say Rs. 10/- or Rs. 5/- even against a demand for any huge amount mentioned in the cheque could frustrate the coercive remedy which the legislature has thought fit to make available under section 138 to a duped payee coming within the ambit of the said section. Anything short of payment of the whole of the amount within the time limit mentioned in clause (c) of the proviso to section 138 generates the cause of action for making a complaint under section 142(b). (Para 7)

       Result: Revision dismissed.