The main legal point established in the judgment is the interpretation of the conflicting provisions of the Negotiable Instruments Act regarding the presentation and dishonour of cheques, as well as the application of the limitation period under section 142(b) of the Act.

JUDGMENT - R.K. BATTA, J.:---In this revision, order dated 16-9-1997, passed by the Chief Judicial Magistrate, Nagpur, is challenged. The complaint under section 138 of Negotiable Instruments Act had been filed in which process had been issued and the accused/present applicant raised preliminary objections which were disposed of vide order dated 16-9-1997. When the matter was called yesterday, no one appeared for the parties and the matter was kept for today. Today again, no one appeared for the parties.

2. The first preliminary objection which was raised by the present applicant is that the complaint was not maintainable under section 138 of the Negotiable Instruments Act (hereinafter called as "the Act") since the same had not been filed within 15 days after the return of cheque on 11-7-1996 and that subsequent presentation and dishonour of the cheque on 10-12-1996 is totally irrelevant for proceedings under section 138 of the Act. This contention was rejected by the Chief Judicial Magistrate, Nagpur on the strength of the judgment of this Court in (Satish Kumar Premchand Jain v. Krishnagopal Mohanlal Sarda)1, reported in 1994 Bank.J. (Bom.)408 and of (Andhra Pradesh High Court Richard Samson Sherrat v. Sudhir Kamar Sanghi and another)2, reported in 1992(2) Crimes 150 wherein it was held that within the period of validity of cheque the complainant can present the cheque at any time and on every dishonour of cheque he gets fresh cause of action.

3. It appears that there was conflict on this issue between various High Courts and the conflict has been settled by the Apex Court in (Sadanandan Bhadran v. Madhavan Sunil Kumar)3, reported in 1999(5) Bom.C.R. (S.C.)242 . In this judgment, the Apex Court has laid down:-

" Now, the question is how the apparently conflicting provisions of the Act, one enabling the payee to repeatedly present the cheque and the other giving him only one opportunity to file a complaint for its dishonour, and that too within one month from the date the cause of action arises, can be reconciled. Having given our anxious consideration to this question, we are of the opinion that the above two provisions can be harmonised, with the interpretation that on each presentation of the cheque and its dishonor a fresh right and not cause of action- accrues in his favour. He may, therefore, without taking pre-empotry action in exercise of his such right under Clause (b) of section 138, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. But, once he gives a notice under Clause (b) of section 138 he forfeits such right for in case of failure of the drawer to pay the money within the stipulated time he would be liable for the offence and the cause of action for filing the complaint will arise. Needless to say, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of fifteen days from the date of the receipt of the notice by the drawer, expires."

4. Applying the principle laid down by the Apex Court, I find that the contention of the applicant is well founded and the complaint in question has been filed beyond limitation as prescribed under section 142(b) of the said Act. Section 142 provides that, nothwithstanding anything contained in the Code of Criminal Procedure, 1973, no Court shall take cognisance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque and 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 and that no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under section 138. Under section 138 of the Act, prosecution can be launched when the cheque has been presented to the bank within a period

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