The legal provisions of Section 138 and Section 142 of the Negotiable Instruments Act were interpreted to determine the maintainability of the complaint.

Special leave is being sought for filling an appeal against the order of acquittal in a criminal prosecution for the offence under Section 138 of the Negotiable Instruments Act 1881 (for short 'the Act'). Learned magistrate, who acquitted the accused, relied on the decision of this Court in Kumaresan v. Ameerappa (1991 (1) Ker LT 893) and found that the complaint filed on a second cause of action with the cheque is not maintainable.

2. In the trial court counsel for the accused cited a decision of Andhra Pradesh High Court in Syed Rasool and Sons v. Alidas and Co. (1992 Cri LJ 4048) and another decision of the Bombay High Court in Rakesh Porwall v. Narayan Joglekar (1993 Cri LJ 680) in which a different view has been adopted from that of Kumaresan's case. But learned magistrate expressed his difficulty to follow those decisions since Kumaresan's decision has been rendered by the High Court of Kerala.

3. Learned counsel for the appellant/complainant, therefore, addressed arguments of persuading me to refer this case to a Division Bench for reconsideration of the dictum laid down in Kumaresan's case in the light of the aforementioned two decisions.

4. Facts of this case, in brief, are the following : A cheque issued in favour of the complainant was dishonoured by the drawee bank on 6-4-1990 on the ground of insufficiency of amount in the account of the accused. Complainant thereupon sent a notice in writing to the accused on 7-4-1990 demanding the amount. But the accused, on receipt of the notice, met the complainant and assured him that the amount would be made up in the account within four months. So, the complainant presented the cheque again on 20-8-1990, but was again dishonoured by the bank on the same ground. On 15-9-1990 the complainant sent another notice to the accused demanding payment. As the accused did not make the payment within the prescribed period even after receiving the second notice, the complaint was filed in the lower court. Accused disputes the stand of the complainant that an assurance was given to make up the amount within four months. However, the main contention raised in the trial court was that no complaint can be filed under section 142 of the Act on the strength of a second cause of action. That contention was upheld and the learned magistrate acquitted the accused.

5. In Kumaresan's case, a Division Bench of this Court has considered the legal position on similar facts. The Bench pointed out that Section 138 of the Act created a new offence based on a cheque returned unpaid, subject to certain conditions. The offence is complete when all the conditions have been completed. When the offence is complete there is a completed cause of action. Section 142 of the Act contains an inviolable ban that no court shall take cognizance of the offence, notwithstanding anything contained in the Code of Criminal Procedure, except upon a complaint in writing made within one month of the date on which the cause of action arose under clause (c) of the proviso to Section 138 of the Act. (Of course, there are certain other postulates also but they are not relevant in this case). The scheme of the legislature in creating a new offence under Section 138 of the Act is reflected in the fascicle of provisions contained in Chapter 17 of the Act all of which were brought together through the same legislative exercise in Act 66 of 1988. It was after considering the aforesaid scheme that the Division Bench of the court has made the following observations in paragraph five of the decision in Kumaresan's case :

"From the scheme of the provisions in Chapter XVII of the Act two features loom large. First is that more than one cause of action on the same Cheque is not contemplated or envisaged. Second is, institution of prosecution cannot be made after one month of the cause of action. If more than one cause of action on the same cheque can be created, its consequence would be that the same drawer of the cheque can be