The failure to comply with prior notices about cheque dishonour negates the basis for subsequent complaints under Section 138, emphasizing clarity on limitation periods.

1. These two applications under S.482 of the Code of Criminal Procedure raise a common question relating to tenability of a complaint filed after the prescribed period of limitation, by presenting the cheque again after first dishonour, in respect of offence punishable under S.138 of the Negotiable Instruments Act .

2. The applicants in both these cases are accused before the learned Judicial Magistrate First Class, Nagpur in Criminal Complaint Nos. 2337 and 2339 of 2005. Criminal Complaint bearing No. 2337 of 2005 was filed in respect of cheque Nos. 272309, 274088 and 274086 issued by the applicant in favour of the complainant. Criminal Complaint No. 2339 of 2005 is in respect of Cheque No. 279014 likewise issued by the applicant in favour of the original complainant. In the complaints filed, the cheques were shown to have been presented by the complainant on 5-8-2005 and 6-8-2005. They were dishonoured and an intimation of dishonour was received by the complainant. On 1-9-2005, the notices were sent to the applicants by the complainant demanding the amounts under the cheques. These notices were duly received by the present applicants. The present applicants, however, failed to comply with the demand within a period of 15 days from the receipt of notice and, therefore, the complainant filed two complaints within a month thereafter. On these averments, after examining the complainant, the learned Judicial Magistrate First Class, Nagpur, directed issuance of process against the present applicants.

3. The applicants challenged the said orders by preferring revisions bearing No. 420 of 2006 and 421 of 2006 before the Court of Session at Nagpur. It was contended that the complainant had suppressed the fact that before issuance of notice dated 1-9-2005, two earlier notices were issued on 28-3-2005 in respect of three cheques and on 25-7-2005 in respect of cheque No. 279014. However, the complaint were not filed in spite of non - compliance with the said notice. Therefore, according to the applicant, presentation of the cheques for the second time and its second dishonour and subsequent issuance of second notices would not bring the complainant's case within limitation. The learned Additional Sessions Judge, however, dismissed the petitions holding that the question whether the complainant had issued notices prior to 1-9-2005 was required to be decided on merits, presumably on facts. Aggrieved thereby, the applicants are before this Court.

4. Upon issuance of notice, the non - applicant appeared, but had failed to deny in the reply that the two earlier notices on 28-3-2005 and 25-7-2005 in respect of the four cheques had been issued. The original complainant / non - applicant contended that the issuance of notice is required to be proved by leading evidence. This stand is impermissible, since it was necessary for the non - applicant to respond to the contentions in para 2 of the application, which specifically refers to issuance of earlier notices. Be that as it may, the learned counsel for the non - applicant, in course of his oral submissions, did not dispute the fact that the complainant had earlier issued the two notices. The submission of the applicant on oath about two earlier notices not having been rebutted, it has to be held that two notices had been issued prior to issuance of notices dated 1-9-2005.

5. The learned counsel for the applicant submitted that it is settled position of law that cause of action to file a complaint for offence punishable under S.138 of the Negotiable Instruments Act gets crystallized the moment a notice demanding the amount