A second complaint under Section 138 of the NI Act, based on a second cause of action on a subsequent presentation of the cheque for encashment, is not maintainable, and service of notice under Clause (b) of Section 138 is essential to give a cause of action for filing a complaint for the offence under Section 138 of the NI Act.

N.L. Tibrewal, J.-In both the cases, the order issuing process is being challenged with a common prayer to quash criminal proceedings pending against the petitioners. The petitions raise the following identical and important questions of law:

(i) Whether a second complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”), based on a second cause of action on a subsequent presentation of the cheque for encashment is maintainable?

(ii) Whether service of the notice issued under Clause (b) of Section 138 on the drawer of the cheque is essential to give a cause of action for filing a complaint for the offence under Section 138 of the Act?

2. In order to appreciate the controversy raised in these petitions, the necessary facts may be stated which are as under the complainant/non-petitioner, herein, filed two separate complaints on May 3, 1993, in the Court of the Additional Munsif and Judicial Magistrate No, 8, Jaipur City, Jaipur, alleging therein that both the parties were engaged in the business of purchase and sale of papers and from February 20, 1991, to February 4, 1992, the petitioners purchased papers from his firm to the tune of Rs. 2,45,726 through various bills and payments were made partly in cash and partly through cheques, the details of which have ‘been given in the complaint. As per the complaint the following six cheques were issued by the petitioners in favour of the complainant

towards the liability outstanding against them:

Cheque Date Amount(in No. Rs.) 3891713,000 17-10-92 389172 3,200 17-10-92 3891733,300 19-10-92 389174

2,500 19-10-92 432000 15,000 23-10-92 424309 15,000 23-10-92

3. The above cheques were presented in the bank for collection, but the same were bounced with the endorsement “exceeds arrangement”. The details about the presentation of the cheques and the dates of their dishonour have been given in paras. 3, 4 and 5 of the complaint. Thereafter, the complainant gave notice to the petitioners on November 7, 1992, through his advocate, Shri Chandra Prakash Joshi, informing about dishonour of the cheques and asking them to make payment within two weeks from the date of receipt of notice. On receipt of notice, the same was replied to by the petitioners on November 23, 1992, through their advocate, Shri Ram Kishore Hemani. In reply they pleaded for deduction of certain amount for having returned 25 bundles of papers. Some other pleas were also taken, but they are not relevant to mention here. Then, a complaint was filed on January 23, 1993, in the Court of the Additional Munsif and Judicial Magistrate No. 8, Jaipur City, Jaipur, alleging therein that an offence under Section 138 of the Act was committed by the petitioners. However, the said complaint was dismissed on February 25, 1993, on the ground of limitation.

4. After dismissal of the complaint, the aforesaid cheques were re-presented in the bank for collection but they were again dishonoured with the remark “refer tp drawer”. A fresh notice was again given to the petitioners on April 13, 1993, through Shri Bhagwan Sahai, advocate, but the same was returned unserved with the endorsement “receiver has left the shop”. The complainant, thereafter, filed two fresh complaints as stated earlier in respect of three cheques each. Criminal Case No. 421 of 1993 relates to cheques N.os. 389174, 432000 and 424309 and Criminal Case No. 422 of 1993, relates to cheques Nos. 389171, 389172 and 389173 on the file of the Magistrate. The learned Magistrate after taking cognizance of the offence and recording the sworn statements of the complainant and the witness Arun Misra, issued process against the petitioners in both the cases. These petitions arise out of these criminal cases.

5. ShriM. M. Ranjan, learned Counsel appearing for the petitioners in both the cases, submitted two grounds for quashing the criminal proceedings against the petitioners. The first ground is that the offence under Section 138 of the Act was committe