A criminal complaint based on a subsequent or successive statutory notice filed under Section 138 of the N.I. Act is maintainable.

JUDGMENT

R.K. Pattanaik, J. - The petitioner has approached this Court by invoking jurisdiction under Section 482 Cr.P.C. assailing legality and judicial propriety of order of cognizance dated 2nd February 2011 (Annexure-3) passed in I.C.C. No.427 of 2010 by the learned S.D.J.M., Khurda on the grounds inter alia that it is not sustainable in law and therefore, liable to be quashed.

2. The petitioner pleaded that unless the impugned order under Annexure-3 is quashed, there would be miscarriage of justice and hence, inherent jurisdiction of this Court under Section 482 Cr.P.C. should be exercised. The petitioner happens to be the accused in a complaint case pending before the court below for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (here-in-after referred to as 'the NI Act') which has been filed by OP No.1 alleging therein that the former had taken a hand loan of Rs.40,000/- to meet his personal needs and when it could be paid back, on 15th May, 2010, some henchmen of OP No.1 forcibly entered inside his residence and managed to obtain a cheque for an amount of Rs.40,000/- drawn in the UCO Bank, Khurda Branch, Khurda and thereafter, presented it before the bank for encashment but it could not be honoured for insufficient funds in the account and again after five months, it was again submitted and yet dishonoured with a similar endorsement dated 18th October, 2010.

3. According to the petitioner, on account of dishonour of cheque due to insufficiency of funds in the account, the learned court below could not have taken cognizance of the offence under Section 138 of the N.I. Act after it was presented for encashment once again after about five months which is not permitted under law. In fact, the only point which has been raised by the learned counsel for the petitioner is about the maintainability of the complaint for a cause of action dated 18th October, 2010 when the cheque could not be honoured for insufficient funds on an earlier occasion.

4. Learned Standing Counsel for OP No.2, however, submits that there is no wrong or illegality in the impugned order under Annexure-3 because OP No.1 could have presented cheques for more than once and in that regard, no prohibition lies. No steps so far been taken for service of notice vis-a-vis OP No.l and hence, he is not before this Court to defend.

5. When a cheque is presented for encashment and stands dishonoured, the payee is required to issue a notice to the drawer demanding payment of the amount and in case, such request is not obliged, complaint under Section 138 of the N.I. Act is filed for the drawer having committed the offence. The question is, whether on the basis of a statutory notice issued by OP No.1 subsequent to dishonour of cheque about five months before, the learned court below could have entertained the complaint and taken cognizance of offence under Section 138 of the N.I. Act as against the petitioner?

6. More or less a similar question was before the Supreme Court in M/s. Sicagen India Ltd. Vrs. Mahindra Vadideni and Others (Criminal Appeal Nos.26-27 of 2019) decided on 8th January, 2019, wherein, it has been held that even a second statutory notice after re-representation of cheque is maintainable in law. In fact, the issue before the Supreme Court was, whether, a criminal complaint based on a subsequent or successive statutory notice filed under Section 138 of the N.I. Act is maintainable. In the decision (supra), the Supreme Court observed that such an issue is no longer res integra and referred to one of its earlier judgment in Sadanandan Bhadran Vrs. Madhavan Sunil Kumar (decided on 28th August, 1998), where it was held to the extent that second and successive presentation of a cheque is legally permissible as long as it is within six months or validity of the cheque, whichever is earlier. In M/s. Sicagen India Ltd. (supra), it has been observed that the correctness of the above mentioned case in Sadanandan was doubted and ref