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TMI Blog2005 (5) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... cedure, 1973 (in short 'the Code'). Background facts filtering out unnecessary details are as under: The complaint was filed by the appellant alleging that in the year 1995 respondent no.1 had issued a cheque for a sum of Rs.5,15,053.72 representing balance amount payable to the appellant for supply of goods to a partnership firm of which respondents are partners. It was indicated that the total amount payable was Rs.49,21,482.72 as against which the accused persons had paid Rs.44,06,429/-, leaving balance of Rs.5,15,053.72. A cheque [drawn on Oriental Bank of Commerce, Ladwa branch (Account no.954)]was issued for the same amount on 27.1.1995. The cheque was signed by respondent no.1 Yashpal Singh, for the firm and respondent no.2 Nirpal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision in Dalmia Cement (Bharat) Ltd. v. Galaxy Traders & Agencies Ltd. and Ors. (2001 (6) SCC 463) is applicable. The period of limitation has to be reckoned from 10.8.1995 i.e. the date on which the respondents-accused persons replied to the legal notice dated 24.7.1995. As the complaint was filed on 28.8.1995 the same was well within time. It was submitted that the respondent-accused persons categorically stated in their reply dated 10.8.1995 that the first notice had not been served on them. Learned counsel for the respondent-accused persons on the other hand, submitted that the High Court had rightly taken the view that the requirements of Section 142 were not met. It was pointed out that the effect of the first notice was lost in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless - (a) the cheque has been 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; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for a cheque being returned due to insufficient funds or similar such reasons and being presented again by the payee after sometime, on his own volition or at the request of the drawer, in expectation that it would be encashed. The primary interest of the payee is to get his money and not prosecution of the drawer, recourse to which, normally, is taken out of compulsion and not choice. On each presentation of the cheque and its dishonour, a fresh right-and not a cause of action - accrues in his favour. He may, therefore, without taking pre-emptory action in exercise of his such 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 cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear that cause of action is to be reckoned accordingly. The combined reading of the above two sections of the Act leaves no room for doubt that cause of action within the meaning of Section 142(c) arises - and can arise - only once. 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. As noted in Sadanandan Bhadran's case (supra) once a notice under clause (b) of Section 138 of the Act is "received" by the drawer of the cheque, the payee or holder of the cheque forfeits his right to again present the cheque as cause of action has accrued when there was failure to pay the amount wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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