TAMEESHWAR VAISHNAVversusRAMVISHAL GUPTA

                       [2010) 1 S.C.R. 204

A                   TAMEESHWAR VAISHNAV
                                 v.
                       RAMVISHAL GUPTA
                 (Criminal Appeal No. 46 of 2010)
                        JANUARY 8, 2010
B
           [ALTAMAS KABIR AND G.S. SINGHVI, JJ.]

       Negotiable Instruments Act, 1881 - ss.138(b) and 142 -
  Notice u/s 138(b) - Receipt of, by drawer of cheque - Drawee
C of cheque failing to take action within stipulated time u/s 138
  - Entitlement of the drawee of cheque to issue Second Notice
  in respect of same cheque and to file complaint u/s 138 -
  Held: Not entitled - Cause of action for a complaint uls 138
  arises only once, with the issuance of notice after dishonour
o of cheque and receipt thereof.
      The question for consideration in the present
  appeals was, whether after the notice u/s 138(b) of
  Negotiable Instruments Act, 1881 is received by the
  drawer of the cheque, the payee/holder of the cheque
E having failed to take action on the basis of the notice
  within the period prescribed u/s 138, is entitled to send a
  fresh notice in respect of the same cheque and file
  complaint u/s 138.

F       Allowing the appeals, the Court

       HELD: 1.1. A cheque may be presented several times
  within the period of its validity, but the cause of action
  for a complaint under Section 138 of the Act arises but
G once, with the issuance of notice after dishonour of the
  cheque and the receipt thereof by the drawer. [Para 15]
  [209-F-H]

      Prem Chand Vijay Kumar vs. Yashpal Singh and Anr.
  (2005) 4 sec 417, relied on.
H                           204
 TAMEESHWAR VAISHNAV v. RAMVISHAL GUPTA                    205

     S.L Constructions vs. Alapati Srinivasa Rao (2009) 1 A
sec 500, distinguished.
     1.2. In the facts of the instant case, the complaints
were filed beyond the period of limitation and the
Magistrate erred in taking cognizance on the. complaints           8
filed on the basis of the second notices. (Para 17] (210-
E-F]

                      Case Law Reference:
     (2005) 4 sec 417          Relied on             Para 15       c
     (2009) 1 SCC 500          Distinguished         Para 15
    CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
No. 46 of 2010.
    From the Judgment & Order dated 27.3.2008 of the High          D
Court of Chattisgarh at Bilaspur in Criminal Misc. Petition No.
178 of 2007.
                              WITH
Crl. Appeal No. 47 of 2010.                                        E
    Dr. Rajesh Pandey, Mahesh Pandey, Mridula Ray
Bharadwaj for the Appellant.
    V. Sridhar Reddy, AS. Rao, Ram Swarup Sharma for the
Respondent.                                                        F
    The Judgment of the Court was delivered by
       ALTAMAS KABIR, J. 1. Delay of 31 days and 39 days in
re-filing the Special Leave Petitions is condoned.
    2. Leave granted.                                              G
     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     H
or holder of the cheque, who does not take any action on the
    206      SUPREME COURT REPORTS                [2010] 1 S.C.R.


A 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.

B        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
C    Branch, in favour of the Respondent. S.L.P. (Crl.) ~o.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
D   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,
E   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)
F   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
G   hand, the Respondent sent a second notice to the Appellant in
    respect 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,
H   Chhattisgarh, on which process was issued by the learned
  TAMEESHWAR VAISHNAV v. RAMVISHAL GUPTA                      207
            [ALTAMAS KABIR, J.)
Magistrate after recording the statement of the respondent-          A
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,
                                                                     8
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.
                                                                     c
     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         D
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         E
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       F
referred to and relied on the decision of this Court in
Sadanandan Bhadran vs. Madhavan Suni/ 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        G
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      H
   208     SUPREME COURT REPORTS                 [2010] 1 S.C.R.


A action arising thereupon and file the complaint. Dishonour of
  the cheque on each re-presentation 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
B 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. Yashpa/ Singh & Anr.
  [(2005) 4 sec 417). wherein the view expressed in
C Sadanandan Bhadran's case (supra) was reiterated. 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
D Magistrate had erred in law in taking cognizance on the basis
  of the second notice whereas the cause of action had arisen
  under the first notice dated 30th March, 2006, which clearly
  indicates that the complaint filed on 10th July, 2006, was well
  outside the period of limitation prescribed in the proviso to
E 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
F 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 of the first notice, it
  must be held that the delay, if any, in filing the complaint had
G 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
H this Court in S.L. Constructions vs. Alapati Srinivasa Rao
   TAMEESHWAR VAISHNAV v. RAMVISHAL GUPTA                         209
             [ALTAMAS KABIR, J.]

 [(2009) 1 SCC 500], in which the decisions of this Court in             A
 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
                                                                         8
 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                 C
 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.                                         o
      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             E
 (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                F
  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   G
  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 dr~wer. 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        H
    210      SUPREME COURT REPORTS                   [2010] 1 S.C.R.


A never reached the addressee. It is only after the third notice was
  received that the cause of action arose for filing the complaint.
  In ~ffect, the cause of action for filing the complaint in the said
  case did not arise with the ir.suance of the first two notices since
  the same were never received by the addressee.
B
        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
C 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
D 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.
E
        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 in taking cognizance
F 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,
G 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.
H K.K.T.                                            Appeals allowed.