Section 138 of the Negotiable Instruments Act, 1881 is attracted even if the cheque is dishonored for reasons other than insufficiency of funds.

( 1 ) THIS revision petition is directed against the order of the Additional Sessions Judge remanding the complaint to the Metropolitan Magistrate. Mr. Gupta, learned Counsel for the petitioner, has argued that Section 138 of the Negotiable Instruments Act, 1881 (in short "act") is attracted only when the amount of money standing to the credit of that account is insufficient to honour the cheque or it exceeds the amount arranged to be paid pursuant to some agreement with the Bank. In no other contingency according to Mr. Gupta, a complaint under Section 138 of the Act can be filed. He, in view of the facts and circumstances of the case, has argued that the cheque when returned on account of stop payment, the provisions of Section 138 of the Act will not beapplicable. In support of his contentions, he has cited a. judgment of Kerala High Court in Bhageerathy v. eena, II (1992) Banking Cases 520, a judgment of Madras High Court in Mrs. R. Jayalkshmi v. Mrs. Rashida, I (1992) Banking Cases 259 and a decision of Punjab and Haryana High Court in Abdul Samad v. Satya Narayan Mahawar, II (1990) Banking Cases 305.

( 2 ) ANOTHER contention of the learned Counsel for the petitioner is that there was delay in filing the complaint. According to him on 2. 4. 1991 cheque, which was drawn by the petitioner in favour of the respondent, was presented by the respondent and the same was returned with the endorsement refer to drawer on 2. 4. 1991. The cheque was again presented on 5. 4. 1991, which was returned after the endorsement payment stopped . The notice under Section 138 of the Act was issued on account of the first dishonourment dated 2. 4. 1991,on 11. 4. 1991 and on 20. 4. 1991, another notice was issued covering the dishonourment on account of endorsement payment stopped. On 21. 5. 1991 complaint was filed. It is the case of the petitioner that on 19. 10. 1991 the complaint was returned for want of jurisdiction and it was refiled on 28. 10. 1991 and reading together the provisions of Section 138 of the Act, the complaint was filed beyond the period of limitation as prescribed under the Act. Learned Counsel for the petitioner has also contended that though an application was moved by the respondent on 22. 10. 1992 for condonation of delay under the provisions of Sections 470 and 473 of the Code of Criminal Procedure (in short "cr. P. C. ") but the provisions of Cr. P. C. would not be applicable in the present case for the purposes of condoning the delay and hence the complaint was beyond the period of limitation. Learned Counsel for the petitioner has also contended that as there was delay in filing the complaint, the petitioner-accused could not have been summoned and in support of his arguments, he has cited Ghansham Dass v. Sham Sundar Lal, 1982 Cr. L. J. 1717 and Panney Singh and Ors. v. State of Rajasthan, 1980 Cr. L. J. 339.

( 3 ) ANOTHER arguments advanced by the learned Counsel for the petitioner is that the notice of such dishonour as envisaged in Sub-clause (B) of the proviso of Section 138 of the Act postulates that such notice could be issued by payee or holder in due course only. Mr. Gupta has contended that in this case the holder in due course was respondent- M/s. DCM Shriram Consolidated Ltd. and notice purpurted to have been issued by an officer of the respondent-Company was no, notice in the eyes of law. Mr. Gupta has further contended that original cheque ought to have been filed with the complaint and in support of his arguments, he has cited Richard S. Sherrat v. State of A. P. and Anr. , I (1993) Banking Cases 23. The last arguments advanced by the learned Counsel for the petitioner is that if a cheque is presented by the holder in due course and the same is dishonoured and the cheque is again presented to the Bank for encashment then the first presentation is waived by the holder in due course. In support of his contentions, the learned Counsel for the petitioner has cited the case of Sekhar Gu