Negotiable instrument act
Querist :
Anonymous
(Querist) 18 November 2011
This query is : Resolved
Kindly tell me the latest authority on complaint can be filed u/s 139 of NI act after issuing a second notice. previously complaint not filed on first notice.
ajay sethi
(Expert) 18 November 2011
you cnanot file a complaint after issue of second notice . if cheque has bounced and legal notice issued but no complaint filed you cnanot issue second notice to file complaint
ajay sethi
(Expert) 18 November 2011
Sadanandan Bhadran v. Madhavan Sunil Kumar (1998 (4) SCALE SC
Complaint U/s. 138- Maintainability - conditions precedent to applicability of sec. 138 - A cheque can be presented any number of times during the period of its validity- Whether dishonour of the cheque on each occasion of its presentation gives rise to a fresh cause of action within the meaning of Sec. 142(b) of the act - Held No. - A competent court can take cognizance of a written complaint of an offence u/s.138 if it is made within one month of the date on which the cause of action arises under clause c of Sec.142 gives it is a restrictive meaning - it is the failure to make payment within 15 days from date of receipt of notice which will give rise to cause of action - Cause of action within meaning of Sec. 142 (c) arises and can arise only once - impediments which negate concept of successive causes of action- Held.:
On each presentation of the cheque and its dishonour a fresh right and not cause of action - accrues in his favour. He may, therefore, without taking pre-emptory action in exercise of his right under clause (b) of Section 138, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. But, once he gives a notice under clause (b) of Sec. 138 he forfeits such right for in case of failure of the drawer to pay the money within the stipulated time he would be liable for the offence and the cause of action for filing the complaint will arise. Needless to say, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of fifteen days from the date of the receipt of the notice by the drawer expires.
No action taken on the first notice - cheque presented again - second notice sent - on failure to receive money case filed on the basis of second notice - Acquittal on ground that there could not be more than one cause of action in respect of a single cheque - sustainable - Appellant had earlier taken recourse to clause (b) of Sec. 138 but did not avail of cause of action that arose in
in his favour u/s. 142(b) of the Act.
Rajeev Kumar
(Expert) 18 November 2011
Mr.sethi has explained well with citations
Querist :
Anonymous
(Querist) 18 November 2011
ya but it is old judgment, now new judgment is given by Supreme court of india in the year of 2010 that complaint cant be filed after issuing second notice. This is the problem
prabhakar singh
(Expert) 18 November 2011
R U LOOKIN[2010 AIR(SCW) 828 = JT 2010 (1) SC 119 = (2010) 2 SCC 329 = (2010) 1 SCR 204 = 2010 CRI. L. J. 1237 = AIR
2010 SC 1209 = (2010) 2 SCC(Cri) 1033]
SUPREME COURT OF INDIA
(ALTAMAS KABIR & G.S. SINGHVI, JJ.)
TAMEESHWAR VAISHNAV
Appellant
VERSUS
RAMVISHAL GUPTA
Respondent
Criminal Appeal No.46 of 2010 (@ Special Leave Petition (Crl) No.6676 of 2008) With Criminal
Appeal No.47 of 2010 (@ S.L.P. (CRL.) NO.6593 of 2008)-Decided on 08-01-2010.
Dishonor of Cheque – Second Notice – Limitation
JUDGEMENT
Altamas Kabir, J.-Delay of 31 days and 39 days in re-filing the Special Leave Petitions is
condoned.
2. Leave granted.
3. The short point for decision in these Appeals is whether after the notice issued under clause (b) of Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act"), is
received by the drawer of the cheque, the payee or holder of the cheque, who does not take any action on the basis of such notice within the period prescribed under Section 138 of the Act, is entitled to send a fresh notice in respect of the same cheque and, thereafter, proceed to file a complaint under Section 138 of the Act.
4. In S.L.P.(Crl.) No.6676 of 2008 arising out of Criminal Case No.399 of 2006 pending before
the Additional Chief Judicial Magistrate, Khairagarh, the Respondent had filed a complaint under Section 138 of the Act, for dishonour of a cheque dated 16th March, 2006, bearing No.0864961 for Rs.40,000/- drawn on the Bank of Maharashtra, Khairagarh Branch, in favour of the
Respondent. S.L.P. (Crl.) No.6593 of 2008 is directed against the judgment of the High Court dated 27th March, 2008, in Crl. Revision No.130 of 2006 arising out of Criminal Case No.339 of 2006 pending with the Additional Chief Judicial Magistrate, Khairagarh, in respect of a similar
cheque dated 20th March, 2006, bearing No.0864962 amounting to Rs.40,000/- drawn on the Bank of Maharashtra, Khairagarh Branch, in favour of the Respondent. As stated hereinabove,
both the said cheques were dishonoured on the ground of insufficient funds. The cheque issued on 20th March, 2006, bearing No.0864962 was dishonoured on 22nd March, 2006, on the ground of insufficient funds. Similarly, cheque bearing No.0864961 dated 16th March, 2006, was dishonoured on 16th March, 2006. Consequently, the Respondent issued notices as contemplated under Clause (b) of the proviso to Section 138 of the Act asking the Appellant to make payment
of the cheque amounts within 15 days. Although, the notice was duly served upon the Appellant, the Respondent did not take any steps to file the complaint within the period prescribed in Section 142 of the Act. On the other hand, the Respondent sent a second notice to the Appellant in respect 2010 STPL(Web) 15 SC 2 Tameeshwar Vaishnav Vs. Ramvishal Gupta
Supreme Court Judgements @ www.stpl-india.in of the two cheques on 7th June, 2006, and, ultimately, when no response was received to the same, he filed two separate complaints before the learned Additional Chief Judicial Magistrate, Khairagarh, District Rajanandgaon, Chhattisgarh, on which process was issued by the learned
Magistrate after recording the statement of the respondent- complainant.
5. Against such order issuing process on both the complaints, the Appellant filed Criminal Revision Nos.130 and 131 of 2006 in the Court of the Additional Sessions Judge, Khairagarh, District Rajanandgaon, on 21st November, 2006. On 19th March, 2007, the learned Additional
District Judge, Khairagarh, dismissed both the Revision Applications holding that the grounds raised therein could be decided after evidence was led by the parties.
6. On 15th May, 2007, the Appellant filed Crl. Misc. Petition Nos.177 of 2007 and 178 of 2007 before the Chhattisgarh High Court under Section 482 Cr.P.C. for quashing the order passed by the Additional Sessions Judge, Khairagarh, on 19th March, 2007. The High Court ultimately dismissed both the Petitions by the orders impugned in these Appeals.
7. On behalf of the Appellant, it was contended that the learned Magistrate had erred in taking cognizance on the complaints filed by the Respondent, since the complaints stood barred under the provisions of the proviso to Section 138 of the Act. It was urged that when the complainant- respondent did not take any action on the basis of the first notice issued on 30th March, 2006, a second notice in regard to the self-same cheque was barred under the proviso to Section 138 of
the Act. In support of his said submission, the learned counsel firstly referred to and relied on the decision of this Court in Sadanandan Bhadran vs. Madhavan Sunil Kumar [(1998) 6 SCC 514], wherein this Court held that the cause of action to file complaint on non-payment despite issue of notice, arises but once. Another cause of action would not arise on repeated dishonour on
re-presentation. Learned counsel pointed out that this Court also held that while the payee was free to present the cheque repeatedly within its validity period, once notice had been issued and payments not received within 15 days of the receipt of the notice, the payee has to avail the very
cause of action arising thereupon and file the complaint. Dishonour of the cheque on each representation does not give rise to a fresh cause of action. Taking note of the amendment to Section 142(b) of the Act, this Court also held that the complaint would have to be filed within one month from the day immediately following the day on which the period of 15 days from the
date of receipt of the first notice by the drawer expires.
8. Learned counsel then referred to another decision of this Court in Prem Chand Vijay Kumar vs. Yashpal Singh & Anr. [(2005) 4 SCC 417], wherein the view expressed in Sadanandan Bhadran's case (supra) was reiterated.
9. Learned counsel submitted that in view of the aforesaid decisions of this Court which authoritatively explained that cause of action arises only once on the issuance of notice upon dishonour of the cheque and receipt thereof by the accused, the learned Magistrate had erred in law in taking cognizance on the basis of the second notice whereas the cause of action had arisenunder the first notice dated 30th March, 2006, which clearly indicates that the complaint filed on10th July, 2006, was well outside the period of limitation prescribed in the proviso to Section 138
of the Act. Learned counsel submitted that the subsequent order passed by the High Court affirming the order of the Magistrate issuing process suffers from the same vice and both the orders were, therefore, liable to be set aside.
10. The submissions made on behalf of the Appellant were vehemently opposed on behalf of the Respondent on the ground that having regard to the assurance given by the Appellant to the Respondent and the request made to present the cheque for the second time, even after issuance 2010 STPL(Web) 15 SC 3 Tameeshwar Vaishnav Vs. Ramvishal Gupta
Supreme Court Judgements @ www.stpl-india.in of the first notice, it must be held that the delay, if any, in filing the complaint had been condoned by the learned Magistrate in keeping with the proviso to Section 142(b) of the Act.
11. Learned counsel submitted that the decisions cited on behalf of the Appellant had been subsequently considered by this Court in S.L. Constructions vs. Alapati Srinivasa Rao [(2009)
1 SCC 500], in which the decisions of this Court in Sadanandan Bhadran's case (supra) and Prem Chand Vijay Kumar's case (supra), had been noted and considered.
12. Learned counsel submitted that in view of the promise held out by the Appellant and his request to present the cheque for the second time, the Respondent had refrained from taking any action on the basis of the first notice which was the cause of the delay in making the complaint.
Upon issuance of process, it must be held that the Court was satisfied that there was sufficient cause for making the complaint after the prescribed period.
13. Learned counsel urged that having regard to the above, no interference was called for with the order of the learned Magistrate taking cognizance or the order of the High Court affirming the
said order.
14. We have given our anxious thought to the submissions made on behalf of the respective parties, having regard to the apparently different views expressed in Sadanandan Bhadran's case
(supra), Prem Chand Vijay Kumar's case (supra) and the latest decision in S.L. Construction's case (supra).
15. On careful scrutiny of the decision in S.L. Construction's case (supra), it would appear that the facts on the basis of which the said decision was rendered, were different from a case of mere
presentation and dishonour of the cheque after issuance of notice under the proviso to Section 138 of the Act. While the decision in Sadanandan Bhadran's case (supra), clearly spells out that a
cheque may be presented several times within the period of its validity, the cause of action for a complaint under Section 138 of the Act arises but once, with the issuance of notice after
dishonour of the cheque and the receipt thereof by the drawer. The same view has been reiterated in Prem Chand Vijay Kumar's case (supra). The only distinguishing feature of the decision in S.L. Construction's case (supra) is that of the three notices issued, the first two never reached the addressee. It is only after the third notice was received that the cause of action arose for filing the complaint. In effect, the cause of action for filing the complaint in the said case did not arise withthe issuance of the first two notices since the same were never received by the addressee.
16. The provisions of Section 138 and clauses (a), (b) and (c) to the proviso thereof indicate that a
cheque has to be presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. Clause (b) indicates that the payee
or the holder in due course of the cheque, has to make demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid and clause (c)
provides that if the drawer of the cheque fails to make the payment of the said amount of money to the payee or to the holder in due course of the cheque within 15 days of receipt of the said
notice, the payee or the holder of the cheque may file a complaint under Section 142 of the Act in the manner prescribed.
17. In the instant case, it is clear that the first notices were received by the Appellant on 14th June, 2006, whereas the complaints were filed on 10th July, 2006. It must, therefore, be held that
the complaints were filed beyond the period of limitation and the learned Magistrate erred in2010 STPL(Web) 15 SC 4
Tameeshwar Vaishnav Vs. Ramvishal Gupta
Supreme Court Judgements @ www.stpl-india.in
taking cognizance on the complaints filed on the basis of the second notices issued on 7th June, 2006. Similarly, the High Court was also wrong in affirming the order of the learned Magistrate.
18. The Appeals must, therefore, succeed and are, accordingly, allowed. The orders of the learned Magistrate dated 13th July, 2006 and 17th July, 2006, respectively, taking cognizance on the Criminal Complaint Nos.339 and 399 of 2006 along with the orders of the High Court impugned
in these appeals, are set aside.G 4
THIS ONE???????????I ALWAYS HAD THIS VIEW ON BARE PROVISIONS
Kiran Kumar
(Expert) 18 November 2011
nice effort by Mr. Singh :)
prabhakar singh
(Expert) 19 November 2011
Anonymous!!!
At least you should have confirmed me it is the right one you were hunting for??????????
Shonee Kapoor
(Expert) 19 November 2011
Agreed with Ld. Mr. Prabhakar
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Devajyoti Barman
(Expert) 19 November 2011
Yes good indeed.
Most of the time people asking for help do not bother to even acknowledge the help rendered by us.
It is always so commonplace.
M/s. Y-not legal services
(Expert) 19 November 2011
Dear author, you don't have shame for posting this query as anonymous? You are an advocate, even whats your problem to clear your doubts with our members.. Just think wisely if you have..
Guest
(Expert) 19 November 2011
@ Prabhakar ji & Devajyoti ji,
Good policy of "neki karwa aur bool ja" for the beneficiary, just opposite of "neki kar aur darya mein daal," as people expect from the experts.
prabhakar singh
(Expert) 19 November 2011
@Dhingra ji
It is not that i was looking for any thanks from him but i was looking he confirms me, that is the judgement he was looking for!
Guest
(Expert) 19 November 2011
@Prabhakar ji,
My intention was also the same as you pointed out. The querist must at least acknowledge whether the requirement of his query has rightly fulfilled or not, when some expert takes such a pain to serve him without any gain. Particularly when a long text of case law is searched for him and provided, like you did, the querist is expected at least to say a word whether that fulfills his need or not.
Querist :
Anonymous
(Querist) 19 November 2011
Dear Respective, i was out of station and could not read the replies and could not post my view,i really very sorry for that.
this authority is not in my favour, i need such a latest authority which show that complaint can be filed on second notice, if complaint is not filed after issuing of first notice. So plz tell the latest authority in my favour. Thanks so much you all respectives.
Guest
(Expert) 19 November 2011
Nice of you for acknowledging that the judgment was suitable to you. Thanks definitely become due to Shri Prabhakar ji & Sethi ji for taking extra pains for you.
