IMPORTANT POINT
Once a notice under clause [b] of Section 138 of the Act is ‘received’ by the drawer of the cheque, the payee or the holder of the cheque forefeits his right to again present the cheque as cause of action has accrued when there was failure to pay the amount within the prescribed period and the period of limitation starts to run which cannot be stopped on any account.

K.N. Basha, J.—The petitioner has come forward with this petition seeking for the relief of quashing the proceedings initiated against him in CC.No.696/2004 on the file of the learned Judicial Magistrate No.1, Erode, for the alleged offence under Section 138 of the Negotiable Instruments Act.

2. Mr. G. R. Hari, the learned counsel for the petitioner submitted that the petitioner is a physically handicapped person and he has lost his right arm above the elbow in a bus accident and he has been served with the summons in this case to appear before the learned Magistrate.

3. The learned counsel for the petitioner vehemently contended that the learned Magistrate ought not to have taken cognizance of the offence under Section 138 of the Negotiable Instruments Act on the basis of the complaint preferred by the respondent/complainant and made the following three-fold submissions:

“(1) The cheque involved in this case had been presented for collection by the respondent/complainant on 29.3.2004 itself was the same wee returned on the ground of “Insufficient Funds” on. 5.4.04 and the intimation of the return of the cheque was given to the respondent/complainant on 15.4.2004 and a statutory notice was also issued on 19.4.2004. But the respondent/complainant has deliberately and intentionally suppressed all those material factors and preferred the present complaint on the basis of the 2nd presentation of the cheque on 15.6.2004 and on the basis of the 2nd statutory notice dated 26.6.2004. The earlier presentation of the cheque and return of the same is very much evident from the list of documents mentioned to the impugned complaint as Bank Memo dated 5.4.2001 and Debit Advise dated 15.4.2004 and as such, the learned Magistrate has not perused the impugned complaint in entirety and not noticed the list of documents mentioned in the complaint. The learned counsel placed reliance on the decision in Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors., reported in 1998 Supreme Court Cases [Cri.] 1400.

[2] The respondent/complainant having presented the cheque on 29.3.2004 and the same was returned on the ground of “Insufficient Funds” on 5.4.2004 and the Bank Debit Advise was received on 15.4.2004 and a statutory notice dated 19.4.2004 was given to the petitioner, the impugned complaint preferred on the basis of the 2nd presentation of the cheque and after the issue of the 2nd statutory notice dated 26.6.2004 would not give rise to any fresh cause of action and as such, the initiation of proceedings on the basis of the 2nd cause of action is liable to be quashed. The decision of the Hon’ble Apex Court in Premchand Vijayakumar v. Yashpal Singh and Anr., 2005 (4) Scale 541 was relied in support of the contention.

[3] The order of taking cognizance of the learned Magistrate against the petitioner is nonest in the eyes of law as the same was taken by playing fraud on the court by the respondent/complainant as the respondent has suppressed the material fact of earlier presentation of the cheque and on the dishonour, sending and serving the earlier statutory notice dated 19.4.2004 and preferring the present complaint on the basis of 2nd statutory notice dated 26.6.2004 as there is no fresh cause of action and thereby, the complaint is barred by limitation. A reliance was placed on the decision of the Hon’ble Apex Court in MCD v. State of Delhi and Anr., reported in 2005 (4) SCC 605”.

4. Per contra, Mr.N. Doraisamy learned counsel for the respondent/complainant contended that there is no infirmity or illegality in the impugned complaint preferred by the respondent/complainant. It is submitted that the petitioner did not appear before the Court and in spite of not appearing the petitioner has filed the present petition for quashing. It is also contended that non-bailable warrant was issued by the learned Magistrate and the same was pending against the petitioner. Learned Counsel for the respondent further contended that the r