[1.0] Present Special Criminal Application under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the petitioner herein – original complainant to quash and set aside the impugned order passed by the learned Judicial Magistrate, First Class, Mehsana dated 10.07.2007 passed below Exh.1 in Criminal Case No.226 of 2006 in dismissing the said complaint filed by the petitioner herein against respondent No.2 herein – original accused for the offence under Section138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “NI Act”). The petitioner has also challenged the impugned judgment and order dated 07.11.2007 passed by the learned Sessions Judge, Mehsana passed in Criminal Revision Application No.111/2007 in dismissing the said revision application and confirming the order passed by the learned Magistrate dismissing the complaint being Criminal Case No.226 of 2006 under Section 204 of the CrPC. [2.0] Facts leading to filing of the present petition in nutshell are as under:
[2.1] That respondent No.2 herein – original accused issued cheque No.134300 in favour of the petitioner – complainant on 05.08.2006 drawn on Sarvoday Commercial Cooperative Bank Limited, Mehsana for an amount of Rs.42,544/. That the said cheque was deposited by the petitioner with their Banker which came to be dishonoured on 10.08.2006 with an endorsement “opening balance insufficient”. That thereafter the petitioner – complainant issued the statutory notice as required under Section 138 of the NI Act on 25.08.2006 by RPAD to respondent No.2 – original accused regarding dishonour of the aforesaid cheque. That the said notice issued upon respondent No.2 – original accused came to be returned with an endorsement “not known”. That thereafter the petitioner – complainant once again deposited the aforesaid cheque on 05.10.2006 (according to the petitioner the same was again deposited/redeposited at the oral request made by respondent No.2 – original accused) and again the said cheque came to be dishonoured with an endorsement “opening balance insufficient”. That thereafter immediately the petitioner issued a notice upon respondent No.2 – original accused under the provisions of Section 138 of NI Act on 14.10.2006 and the same was returned with an endorsement “unclaimed” on 30.10.2006. That thereafter the petitioner had filed a Criminal Case No.226 of 2006 in the Court of learned JMFC, Mehsana on 20.11.2006 against respondent No.2 herein – original accused for offence under Section 138 of the NI Act. That the learned JMFC, Mehsana by order dated 10.07.2007 has dismissed the said complaint under Section 204 of the CrPC on the ground that the said complaint was barred by limitation considering the period of limitation from the date of first dishonour of the cheque and issuance of the first notice on 25.08.2006. Being aggrieved and dissatisfied with the order passed by the learned JMFC, Mehsana below Exh.1 in Criminal Case No.226 of 2006 in dismissing the same under Section 204 of the CrPC, the petitioner – original complainant preferred Criminal Revision Application No.111/2007 before the learned Sessions Court, Mehsana and the learned Principal Sessions Judge, Mehsana by impugned judgment and order dated 07.11.2007 has dismissed the said Revision Application relying upon the decision of the Hon'ble Supreme Court in the case of D. Vinod Shivappa v. Nanda Belliappa reported in AIR 2006 SC 2179 as well as another decision of the Hon'ble Supreme Court in the case of (M/s.) Dalmia Cement (Bharat) Ltd. v. (M/s.) Galaxy Traders & Agencies Ltd. & Ors. reported in 2001 (1) G.L.H. 546 confirming the order passed by the learned JMFC dismissing the said complaint. Being aggrieved and dissatisfied with the impugned order passed by both the Courts below in dismissing the complaint filed by the petitioner against respondent No.2 for the offence under Section 138 of the NI Act, the petitioner – original complainant has preferred the present Special Criminal Application under Article 227 of the Constitution of India read with Section 482 of the CrPC.
[3.0] Shri Jal Unwala, learned advocate appearing on behalf of the petitioner has vehemently submitted that both the Courts below have materially erred in dismissing the complaint against respondent No.2 herein for the offence under Section 138 of the NI Act on the ground that the said complaint was barred by limitation.
[3.1] It is submitted by Shri Unwala, learned advocate appearing on behalf of the petitioner – original complainant that pursuant to the dishonour of the cheque on 10.08.2006, the petitioner – original complainant issued notice by RPAD on 25.08.2006 which was returned with endorsement “not known”. Therefore, as the notice dated 25.08.2006 was not served upon the accused, no cause of action had arisen in favour of the petitioner to file the complaint against respondent No.2 – original accused for offence under Section 138 of the NI Act and therefore, it was permissible for the petitioner – complainant to redeposit the cheque which was deposited again on 05.10.2006 which also came to be dishonoured for the reason viz. “opening balance insufficient” and thereafter the notice was issued under Section 138 of the NI Act on 14.10.2006 informing the accused with respect to dishonour of the cheque on 05.10.2006 and thereafter, within the statutory period, present complaint under Sections 138 and 142 of the NI Act has been filed by the petitioner and therefore, the period of limitation to file the complaint against the accused would commence from the date of issuance of notice dated 14.10.2006 and service of the said notice upon the accused. Therefore, it is submitted that both the Courts below have committed an error in holding that the complaint filed by the petitioner was barred by limitation considering the period of limitation from issuance of the first notice i.e. 25.08.2006. It is submitted that in the facts and circumstances of the case, the decisions relied upon by the accused in the case of D. Vinod Shivappa (Supra) as well as in the case of (M/s.) Dalmia Cement (Bharat) Ltd. (Supra) as well as the decision in the case of Sadanandan Bhadra v. Madhavan Sunil Kumar reported in AIR 1998 SC 3043 would not be applicable to the facts of the present case.
[3.2] Shri Unwala, learned advocate appearing on behalf of the petitioner has heavily relied upon the decision of the Hon'ble Supreme Court in the case of S.L. Constructions & Anr. v. Alapati Srinivasa Rao & Anr. reported in AIR 2009 SC 1538.
Making above submissions and relying upon above decisions, it is requested to allow the present petition.
[4.0] Petition is opposed by Shri Satta, learned advocate appearing on behalf of respondent No.2 – original accused. It is submitted that as such there are concurrent finding of facts given by both the Courts below holding that the complaint filed by the petitioner for the offence under Section 138 of the NI Act was barred by limitation therefore, the same are not required to be interfered by this Court in exercise of powers under Article 227 of the Constitution of India read with Section 482 of the CrPC.
[4.1] It is submitted that once the cheque was deposited by the petitioner and the same was dishonoured with an endorsement “funds insufficient” and the petitioner issued the notice upon the accused under Section 138 of the NI Act, thereafter it was not open for the petitioner to redeposit the cheque again and thereafter to issue the notice again. It is submitted that in such a case the limitation to file the complaint would commence from the date on which the first cause of action has arisen and the first notice was issued upon the accused for dishonour of the cheque and in the present case on 25.08.2006. Therefore, it is submitted that both the Courts below have rightly considered the commencement of the limitation from the date of issuance of the first notice dated 25.08.2006.
[4.2] Shri Satta, learned advocate appearing on behalf of respondent No.2 has heavily relied upon the following decisions of the Hon'ble Supreme Court.
1. Krishna Exports and Others v. Raju Das (2004) 13 SCC 498
2. Ratilal Manjibhai Patel v. M/s. Crown Industries & Anr. 2007 (6) AIR BOM R 534 Making above submissions and relying upon decisions, it is requested to dismiss the present petition.
[5.0] Heard the learned advocates appearing for respective parties at length. The short question which is posed for consideration of this Court is, whether in the facts and circumstances of the case, when the first statutory notice issued under Section 138 of the NI Act returned unserved and thereafter, the said cheque was redeposited and which again came to be dishonoured and thereafter, when another notice was given and the complaint is filed on completion of the statutory period as required under Section 138 of the NI Act on the basis of the second notice, whether such a complaint is maintainable or not and/or in such a case whether the limitation to file the complaint as provided under Section 142 of the NI Act would start considering the first notice or the second notice?
[5.1] In the present case, as stated herein above, the petitioner – original complainant issued the notice for dishonour of the cheque as provided in clause (b) of the proviso to Section 138 of the NI Act by RPAD on 25.08.2006. However, the said notice came to be returned with an endorsement “not known”. That thereafter the petitioner – complainant once again deposited the aforesaid cheque on 05.10.2006 (according to the petitioner, the same was again deposited/redeposited at the oral request made by respondent No.2 – original accused) and again the said cheque came to be dishonoured and thereafter, immediately the petitioner issued a notice upon respondent No. 2 – original accused as provided under clause (b) of the proviso to Section 138 of the NI Act on 14.10.2006 intimating the accused with respect to dishonour of the cheque and thereafter within the period of limitation as provided under Section 142 of the NI Act and considering the starting point of limitation from the second notice dated 14.10.2006, the petitioner filed/instituted the complaint against the accused for the offence under Section 138 of the NI Act. That the learned Magistrate dismissed the said complaint on the ground that the same was barred by limitation, considering the starting point of limitation from the date of first notice i.e. 25.08.2006. Therefore, the question which is required to be considered is whether in facts stated above, redeposit of the cheque on second time was permissible or not and whether in the facts and circumstances of the case narrated herein above, the period of limitation would start/commence from the date of first statutory notice on dishonour of the cheque for the first time or the second notice issued under clause (b) of the proviso to Section 138 on dishonour of the cheque deposited second time?
[6.0] Identical question came to be considered by the Hon'ble Supreme Court in the case of S.L. Constructions and Another (Supra). In the case before the Hon'ble Supreme Court, the cheque was presented three times and dishonoured every time and the notices of dishonour also issued thrice. However, it was found that first two notices were issued to the wrong addressee and it was found that the first notice was not received by the drawer and the second notice was withdrawn by the complainant on an objection raised by the drawer itself and the third notice was addressed properly to the drawer and received by the accused and to that the Hon'ble Supreme Court has held that cause of action arose with respect to third notice and as the complaint is filed within a month thereof, all the conditions precedent for launching the prosecution under Section 138 of the NI Act were, therefore, satisfied and therefore, it was held that the complaint was not barred by limitation. In the said decision, the Hon'ble Supreme Court also considered the decision of the Hon'ble Supreme Court in the case of Sadanandan Bhadra (Supra) which has been relied upon by the learned advocate appearing on behalf of the original accused and in paragraphs 18 to 22, the Hon'ble Supreme Court has observed and held as under:
18. Sadanandan Bhadran (supra) whereupon strong reliance has been placed by Mrs.Desai, learned counsel lays down the law in the following terms :
"7. Besides the language of Sections 138 and 142 which clearly postulates only one cause of action, there are other formidable impediments which negate the concept of successive causes of action. One of them is that for dishonour of one cheque, there can be only one offence and such offence is committed by the drawer immediately on his failure to make the payment within fifteen days of the receipt of the notice served in accordance with clause(b) of the proviso to Section 138. That necessarily means that for similar failure after service of fresh notice on subsequent dishonour, the drawer cannot be liable for any offence nor can the first offence be treated as non est so as to give the payee a right to file a complaint treating the second offence as the first one. At that stage, it will not be a question of waiver of the right of the payee to prosecute the drawer but of absolution of the drawer of an offence, which stands already committed by him and which cannot be committed by him again."
It was further held :
"8. The other impediment to the acceptance of the concept of successive causes of action is that it will make the period of limitation under clause(c) of Section 142 otiose for, a payee who failed to file his complaint within one month and thereby forfeited his right to prosecute the drawer, can circumvent the above limitative clause by filing a complaint on the basis of a fresh presentation of the cheque and its dishonour. Since in the interpretation of statutes, the court always presumes that the legislature inserted every part thereof for a purpose and the legislative intention is that every part should have effect, the above conclusion cannot be drawn for that will make the provision for limiting the period of making the complaint nugatory."
19. Indisputably, the term cause of action would mean each of the facts required to be proved. Successive issuance of notices having been made under Section 138 of the Act as laid down under the proviso appended thereto, the respondent merely made all attempts to comply with the legal requirements.
20. In this case, as indicated hereinbefore, the first notice having not been served and the second notice having been withdrawn in terms of the reply issued by the learned advocate for the appellants themselves, the complainant cannot be said to have committed any illegality in presenting the cheque for the third time and issuing the third notice upon the defaulter.
21. We need not refer to the other decisions relied upon by Mrs.Desai, learned counsel as the same had merely followed the dicta laid down in Sadanandan Bhadran (supra).
22. As the issuance of cheque, nonpayment thereof on presentation, issuance of a valid notice calling upon the drawer of the cheque to pay the amount in question and the appellants' failure to pay to the complainant the amount in question within a period of 15 days from the date of receipt of a copy of the said notice upon them, a cause of action arose for filing a complaint petition, in our opinion, the High Court cannot be said to have committed any error in passing the impugned judgment.
[6.1] In the present case, as stated herein above, when the cheque was deposited by the petitioner with their banker which came to be dishonoured on 10.08.2006, the petitioner – complainant issued statutory notice as required under clause (b) of the proviso to Section 138 on 25.08.2006. However, admittedly, the said notice came to be returned with an endorsement “not known”. Therefore, when admittedly the said statutory notice was not served upon the accused, it cannot be said that cause of action to file the complaint had arisen in favour of the complainant. A cause of action to file the complaint for offence under Section 138 of the NI Act arises only when the following conditions are satisfied.
(i) that the cheque must be presented with a period of six months from the date on which it is drawn;
(ii) on the cheque being returned unpaid by the banker, a notice has been issued within 30 days from the date of receipt of the information by him from the bank regarding the cheque being unpaid;
(iii) and in the event, the drawer of the cheque fails to make payment of the said amount money to be paid within 15 days from the receipt thereof and a complaint has been filed within the period prescribed in terms of section 142 thereof.
Therefore, unless and until the statutory notice which has been issued as per clause (b) of the proviso to Section 138 of the NI Act has been served upon the accused/drawer and the drawer of such cheque fails to make the payment within 15 days of the receipt of the said notice, there is no cause of action arisen in favour of the complainant to file the complaint. Therefore, when no cause of action had arisen in favour of the complainant to file the complaint and the cheque is redeposited and when again the said cheque is returned unpaid and again a statutory notice has been issued as required under clause (b) of the proviso to Section 138 of the NI Act and the said notice has been served and the drawer fails to make the payment within the prescribed period mentioned in clause (c) of the proviso to Section 138 of the NI Act, the period of limitation to file the complaint as provided under Section 142 of the NI Act would commence considering the second notice. In such a case, the decision of the Hon'ble Supreme Court in the case of Sadanandan Bhadra (Supra) would not be applicable. The decision of the Hon'ble Supreme Court in the case of Sadanandan Bhadra (Supra) would be applicable only in a case where the cause of action had arisen in favour of the complainant to file the complaint after having satisfied all the conditions which are provided under Section 138 of the NI Act and the complainant fails to file the complaint, he cannot have a second cause of action on redeposit of the cheque again. Therefore, in the case of Sadanandan Bhadra (Supra) before the Hon'ble Supreme Court, it was a case of second cause of action. Therefore, the said decision and/or any other subsequent decisions taking the similar view would not be applicable in a case like the present one where due to nonservice of the notice upon the accused for dishonour of the cheque deposited for the first time, no cause of action has arisen in favour of the complainant to file the complaint under Section 138 of the NI Act. Therefore, considering the decision of the Hon'ble Supreme Court in the case of S.L. Construction and Another (Supra), it can be said that till the cause of action arises in favour of the complainant to file the complaint for offence under Section 138 of the NI Act, the complainant can redeposit the cheque during its validity period and period of limitation to file the complaint as provided under Section 142 of the NI Act would commence from the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the NI Act i.e. on receipt of the statutory notice issued under clause (b) of the proviso to Section 138, the drawer of such cheque fails to make the payment within 15 days thereafter.
[7.0] Considering the above decisions relied upon by the learned advocate appearing for original complainant referred to herein above would not be applicable and/or of any assistance to the complainant. In all the cases relied upon by the learned advocate appearing on behalf of the original complainant, it appears that they are the cases of two cause of actions i.e. the complainant failed to file the complaint despite the cause of action had arisen and again the cheques were deposited. In the present case, as stated herein above, due to nonservice of the statutory notice upon the accused/drawer, no cause of action had arisen in favour of the complainant to file the complaint under clause (c) of the proviso to Section 138.
[7.1] Considering the aforesaid facts and circumstances, the learned Magistrate has materially erred in dismissing the complaint on the ground that the same was barred by limitation, considering the starting point of limitation from the date of issuance of the first notice dated 25.08.2006. In the facts and circumstances of the case, the learned Magistrate ought to have considered the commencement of the period of limitation from the date of notice dated 14.10.2006. It cannot be disputed that if the starting point of the limitation is considered from the notice dated 14.10.2006 (on return of the cheque which was redeposited) in that case, the complaint would be within the period of limitation. Consequently, the learned Revisional Court has also materially erred in dismissing the said Revision Application and confirming the order passed by the learned Magistrate dismissing the complaint on the ground of limitation.
[8.0] In view of the above and for the reasons stated above, the petition succeeds and the impugned order dated 10.07.2007 passed by the learned Judicial Magistrate, First Class, Mehsana below Exh.1 in Criminal Case No.226 of 2006 as well as the impugned judgment and order dated 07.11.2007 passed by the learned Sessions Judge, Mehsana in Criminal Revision Application No.111/2007 are hereby quashed and set aside and it is held that the complaint filed by the petitioner – original complainant against respondent No.2 herein – original accused for the offence under Section 138 of the NI Act is within the prescribed period of limitation and consequently the learned Magistrate is directed to proceed further with the aforesaid Criminal Case No.226 of 2006 in accordance with law and on its own merits at the earliest. Rule is made absolute accordingly.
(M.R. Shah, J.) menon