9911796707
TMI Blog2005 (5) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... he said period of 15 days, no cause of action could have been created at all. Thus, it is well settled that if dishonour of a cheque has once snowballed into a cause of action it is not permissible for a payee to create another cause of action with the same cheque. Thus the impugned judgment does not suffer from any infirmity to warrant interference.Appeal dismissed. - CRL. A. 651 OF 2005 - - - Dated:- 2-5-2005 - ARIJIT PASAYAT S.H. KAPADIA, JJ. JUDGMENT Leave granted. Challenge in this appeal is to the legality of the judgment rendered by a learned Single Judge of the Punjab and Haryana High Court holding that the proceedings initiated on the basis of a complaint alleging infraction of Section 138 of the Negotiable Instrum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .7.1995. Again, lawyer's notice was sent on 24.7.1995. Reply was sent by the respondents on 16.8.1995 refuting the allegations contained in the legal notice. The complaint was lodged on 28.8.1995. Charges were framed. Respondent filed an application for discharge which was dismissed by the trial court by order dated 29.1.2002. The order was challenged before the High Court which by the impugned judgment held that the requirements of Section 142 of the Act were not met. In support of the appeal, learned counsel for the appellant submitted that the High Court was not right in entertaining the petition under Section 482 of the Code. The High Court lost sight of the fact that the application was filed by the respondents long after the char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was submitted that the appellant himself accepted that the first notice had been served. Therefore, he cannot be permitted to take the different stand that the notice was not served and in any event the second notice did not provide the cause of action. For resolution of the controversy Sections 138 and 142 of the Act are relevant. They read as follows: "Section 138: Dishonour of cheque for insufficiency, etc. of funds in the account - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138; (Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.) (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138." Clause (a) of the proviso to Section 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cute the drawer for an offence under Section 138 of the Act: (a) that the cheque was drawn for payment of an amount of money for discharge of a debt/liability and the cheque was dishonoured; (b) that the cheque was presented within the prescribed period; (c) that the payee made a demand for payment of the money by giving a notice in writing to the drawer within the stipulated period; and (d) that the drawer failed to make the payment within 15 days of the receipt of the notice. Proceeding on the basis of the generic meaning of the term "cause of action", certainly each of the above facts would constitute a part of the cause of action but clause (b) of Section 142 gives it a restrictive meaning, in that, it refers to only one fact whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion could have been created at all. Thus, it is well settled that if dishonour of a cheque has once snowballed into a cause of action it is not permissible for a payee to create another cause of action with the same cheque. In Sil Import, USA v. Exim Aides Silk Exporters, Bangalore (1999 (4) SCC 567), it was held that the language used in Section 142 admits of no doubt that the magistrate is forbidden from taking cognizance of the offence if the complaint was not filed within one month of the date on which the cause of action arose. Completion of the offence is the immediate forerunner of rising of the cause of action. In other words, cause of action would arise soonafter completion of the offence and period of limitation for filing of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
