IMPORTANT POINT
Complainant well within right to made second presentation of cheque and complaint filed upon dishonour and failure to meet demand under notice issued thereafter, cannot be said to be bad in law.

Anand Byrareddy, J.—This is a complainant’s appeal. The complainant had alleged that the respondent had committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881, (Hereinafter referred to as ‘the NI Act’, for brevity) The complainant was said to be a tenant under the respondent. It is stated that he had paid a security deposit under the lease agreement. This sum of Rs.2.50 lakh was said to have been refunded by the respondent after deducting Rs.8,000/-, by way of a cheque dated 22.2.2007. The cheque having been dishonoured on being presented for collection and when the respondent failed to make payment against a demand made in terms of Section 138 of the NI Act, the complaint came to be filed.

2. In the proceedings before the Magistrate, though the accused had entered appearance, the matter was not contested.

In that, the complainant was not cross-examined to test his evidence by way of his examination-in-chief, nor did the accused tender any evidence in spite of opportunity. The case of the complainant was therefore accepted by the court and the respondent was convicted and sentenced to pay a fine of Rs.2.45 lakh of which Rs.2.44 lakh was to be paid as compensation to the complainant.

The accused had challenged the judgment of the trial court by way of an appeal before the lower appellate court. He was permitted to tender evidence under Section 391 of the Code of Criminal Procedure, 1973, (Hereinafter referred to as ‘the Cr.P.C.’, for brevity). The accused had then demonstrated that the actual sequence of events were as follows, that in terms of Exhibit P6, the endorsement issued by the banker, of dishonour of the cheque was on 25.4.2007, pursuant to which the complainant is said to have issued a notice of demand, Exhibit-D1, hence the cause of action to file a complaint, when the accused failed to meet the demand, arose on 9.5.2007.

However, no complaint was preferred. The complainant chose to present the cheque again on 28.6.2007 for encashment.

When it was again dishonoured, the complainant is shown to have issued a second notice of demand under Section 138 of the NI Act, dated 10.7.2007 and since the accused had again failed to respond that the complaint came to be filed. This, the lower appellate court has held, was impermissible and has acquitted the accused . It was opined that on issuing the first notice dated 25.4.2007, the complainant had exercised the right to proceed against the accused. If no complaint was filed, the complainant forfeited his right to do so and could not issue a second notice and file a complaint on a re-presentation of the cheque in question. It is this which is sought to be questioned in this appeal.

3. After having heard the learned counsel for the parties, the only controversy is whether such presentation of the cheque for the second time and then to lodge a complaint on dishonour, was permissible. Notwithstanding that the apex court has ruled on this issue and that the question is no longer res integra, the counsel for the respondent has sought to canvas that the opinion expressed in a recent decision of the Apex court, in Dashrath Rupsingh Rathod v. State of Maharashtra & Another, 2014 SAR (Criminal) 966 Supreme Cour: 2014 (9) Supreme Court Cases 129: 2014 (3) Crimes 162 (SC): 2014 (5) Supreme 641: 2014(3) CCC 164: 2014(2) Bankmann 53 (SC), a three judge bench judgment, is to the effect that a second presentation of the cheque on an initial dishonour, would not give a fresh cause of action to file a complaint.

4. The learned counsel for the respondent seeks to draw attention to the following passages to contend that though the decision in Sadanandan Bhadran v. Madhavan Sunil Kumar, (1998) 6 SCC 514, was overruled in the case of MSR Leathers v. S. Palaniappa, (2013) 1 SCC 177, the highlighted portion of the observations hereunder, according to the counsel for the respondent, restore the legal position as spelt out by Sadanandan Bhadran.

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