The court ruled that repeated presentation of dishonored cheques allows for prosecution under the Negotiable Instruments Act even after prior notices.

JUDGMENT :

Savitri Ratho, J.

1. This application under Section 401 read with Sections 397 and 482 of the Code of Criminal Procedure has been filed challenging the judgment dated 17.11.2005 passed by the learned S.D.J.M., Balasore in I.C.C. Case No. 230 of 2004 (Trial No. 225 of 2005) acquitting the opposite parties no. 1 to 5 under Section 138 of The Negotiable Instruments Act and Section 420 of IPC.

2. Brief fact of the case is that the present petitioner had filed a complaint case stating that the opposite party had entered with an agreement with him for raising metal from the quarry owned by the petitioner and from time to time the opposite parties were paying his legal dues. However, for due discharge of their liabilities the present opposite parties have given two cheques bearing no. 700050 dated 25.12.2003 for Rs.5,00,000/- and another cheque bearing no.700051 dated 25.11.2004 for Rs.10,00,000/-. However, on 27.01.2004 when the complainant deposited these cheques for encashment, those were bounced by his banker ‘Canara Bank’ Balasore on the ground payment stopped by drawer. However, when the complainant informed the matter to the present opposite parties, they requested him to deposit both cheques again and on 11.05.2004 complainant deposited both the cheques in “Andhra Bank” but those were dishonoured by the Bank on the same ground that payment stopped drawer and for insufficient of funds. Thereafter complainant issued notice to the present opposite parties through Advocate, but opposite party nos. 2 and 3 did not receive the notice and the opposite parties sent one evasive reply to the complainant (the present petitioner) disowning any claim.

3. The plea of opposite parties is one of complete denial and further they took the stand that this case is barred by limitation and opposite parties had no liability to pay any amount to the complainant.

4. Out of such rival pleas the point for determination in this case:-

(i) Whether the opposite parties for due discharge of their legal liability, issue two cheques totaling Rs.15,00,000/- to the complainant and those were dishonoured by bank?

(ii) Whether being duly noticed opposite parties failed to make the payment and if the case is filed in time and not barred by limitation?

5. In order to prove its case, the petitioner examined one witness who is the complainant himself and produced as many as 16 documents which are marked as Ext.1 to Ext.16.

6. The defence also proved several documents and examined two witnesses and the opposite parties brought into evidence as many as 10 documents which are marked as Exts. A to K.

7. The learned trial Court first proceeded to consider the maintainability of the complaint as the defence had challenged the same.  It observed that the cheques were dishonoured once in January 2004 and subsequently in May, 2004. As per Section 138 of the N.I. Act, once a cheque bounces, within 15 days demand notice is to be issued to the accused and thereafter within a span of one month, the case has to be filed, but in the present case though the cheques first bounced in the month of January, 2004 and demand notice was issued to the accused on 09.02.2004, no case was filed within one month. Hence the case is grossly barred by limitation.

8. The learned Trial Court found that in the instant case cause of action for the complainant arose after complainant received the intimation from bank on 25.12.2003 and on 25.01.2004 as found from Ext.4 and 5. Further, receipt of legal notice issued by the complainant himself as per Ext.A and B and subsequent issuance of notice through advocate vide Ext.C has not been disputed by complainant which tends to one irresistible conclusion that Ext. A, B and C which are all demand notices were duly received by accused persons. Regarding the stand taken by complainant that all accused persons were not served with notice, has no ground as because in this case accused No.1 is a company and accused No.2 to 5 are its officers who are managing the