IMPORTANT POINT
If the payee does not choose to act on the first presentation, dishonour etc. of the cheque, the payee can always represent the cheque and after other requirements he can always file a complaint for offence uls.I38 of the Negotiable Instruments Act.

Pratap Singh, J. - Accused in c.c. No. 3814 of 1993 on the file of the VIII Metropolitan Magistrate, Madras, has filed this petition under Section 482 of the Code of Criminal Procedure, praying to call for the records in the above case and to quash the same.

2. Respondent herein has filed a complaint against the petitioner for the offence under Section 138 of the Negotiable Instruments Act (which I shall refer hereafter as 'the Act'). The allegation in the complaint are briefly as follows:

The accused borrowed a sum of Rs.30,000/- from the complainant on 15.6.1992 and had executed a promissory note therefor. To discharge the said debt, the accused issued a cheque dated 22.12.1992 in favour of the complaint for Rs.30,000/-. The complainant presented the cheque for encashment. It was returned for the reason, "refer to drawer". The complainant sent a notice on 29.12.1992 and the accused had received it on 31.12.1992. The accused met the complainant and requested him to give some more time. On 28.2.1993 the accused sent a letter to the complainant asking him to represent the cheque again to realise the amount due. On that instruction, the complainant presented the cheque again. The cheque was returned with the endorsement "refer to drawer" on 27.2.1993. The complainant sent a legal notice dated 29.3.1993 to the accused calling upon him to make the payment. The notice was returned on 12.3.1993 as "not found". The accused is still living at the very address and the notice was sent to the very same address. In order to cheat the complainant, the accused has not received the notice. Hence, the complaint.

3. Mr. Shanmughavelu, learned Counsel for the petitioner would submit that the first presentation of the cheque, dishonour thereof, statutory notice, service of the same on the accused and the non-payment of the cheque amount within 15 days made out an offence and the cause of action arose on the above non-payment and while so, the second presentation for the cheque, dishonour, demand for the cheque amount, written notice, non-payment of the amount even after 15 days, cannot give rise to an offence under Section 138 of the Act. He would add that limitation and cause of action would arise even from the time of nonpayment on the first occasion and this complaint having been presented more than 30 days after such non-payment, is barred by time.

4. I have heard Mr. Mohammed Arfi, learned Counsel for the respondent on the above aspects. I have carefully considered the submission of Mr. A. Shanmughavelu. I shall first refer to the relevant provisions in the Act. Section 142 (b) reads as follows:

"Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)

(a) x x x x

(b) such complaint is made within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138.

(c) xxx x

Clause (c) of the proviso to Section 138 is relevant since that has been referred to in Section 142 (b) and so, to have a complete picture, the said Clause (c) needs extraction and it reads as follows:

"the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice."

From a conjoined reading of Section 142 (b) and Clause (c) of the proviso to Section 138 of the Act, it would be clear that the cause of action would arise on the expiry of 15 days from the date of receipt of the statutory noticed issued as per Section 138, proviso (b). I shall now consider the relevant allegations made in the complaint with regard to an offence under Section 138 of the Act for which the impugned complaint was lodged. The relevant paragraphs 6 in the complaint reads as follows:

"The complainant sent a legal notice on 1.3.1993 to the very same address as the previous notice and the notice was returned on 12.3.1993 as "not found". The complainant submits that the accused is