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TMI Blog2008 (10) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... contend that the said cheque was issued by way of security. (4) The said cheque was presented in the bank on 23.6.2003. It was returned un-paid by the banker of the appellants on the ground of insufficient funds. (5) Another notice was sent for service on the proprietor of S.L. Structures and Engineers on or about 8.7.2003. However, admittedly, the said notice was not served upon the appellants. (6) The said cheque was again presented before the bank on 30.8.2003, and was again dishonoured. (7) Respondents served another notice upon the appellant No.2 describing him as a proprietor of S.L. Structures and Engineers and calling upon him to pay the said amount of Rs. 2 lacs within 15 days from the date of receipt thereof. (8) However, in response thereto the appellants' advocate by a letter dated 19.9.2003 pointed out that in stead and place of S.L.Structures and Engineers, the notice should have been sent to S.L.Constructions. It was stated thus: " That instead of sending the notice to S.L. constructions you send the notice to my client Shri K.P.Raju Proprietor of S.L.Structures and Engineers, Nagpur which is illegal. That by issuing such wrong and illegal notice your client lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the deposit of the cheque for the third time and issuance of third notice was illegal and without jurisdiction. (14) The Negotiable Instruments Act, 1881 was enacted to define and amend the law relating to Promissory Notes, Bills of Exchange and Cheques. (15) Chapter XVII of the Act provides for penalties in case of dishonour of cheques for insufficiency of funds in the accounts of the drawer thereof. (16) Indisputably,Chapter XVII, which was inserted by the Banking Public Financial Institutions and Negotiable Instruments Laws(Amendment) Act, 1988( 66 of 1988) and came into force on 1.4.1989, was incorporated to "enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in case of bouncing of cheques due to insufficiency of funds in the accounts or for the reason that it exceeds the arrangements made by the drawer, with adequate safeguards to prevent harassment of honest drawers" (17) It is in the aforementioned backdrop we may notice the provisions of Sections 138, 139 and 142 of the said Act: "138. Dishonour of cheque for insufficiency, etc., of funds in the account - Where any cheque drawn by a person on an account ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. " (18) Indisputably, by reason of Section 138 of the Act a penal provision has been laid down that the issuer of any cheque would commit an offence if the cheque when presented is dishonoured. (19) For the said purpose a legal fiction was created. The proviso appended to the said provision, however, restricts the application of the main provision by laying down the conditions which are required to be complied with before any order taking cognizance can be passed which are; (i) that the cheque must be presented within a period of six months from the date on which it is drawn; (ii) on the cheque being returned un-paid by the banker, a notice has to be issued within thirty days from the date of receipt of information by him from the bank regarding the cheque being unpaid; (iii) in the event, the drawer of the cheque fails to make payment of the said amount of money to be paid within 15 days from the receip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 pros ..... X X X X Extracts X X X X X X X X Extracts X X X X
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