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TMI Blog2017 (12) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... er’s right to prosecute the drawer for the default committed by him remains valid and exercisable. By reason of a fresh presentation of a cheque followed by a fresh notice in terms of section 138 proviso clause (b), the drawer gets an extended period to make the payment and thereby benefits in terms of further opportunity to pay to avoid prosecution. Such fresh opportunity cannot help the defaulter on any juristic principle, to get a complete absolution from prosecution. - CRMP No. 1382 of 2017 - - - Dated:- 5-12-2017 - Hon'ble Shri Justice Goutam Bhaduri For the Petitioner : Smt. Fouzia Mirza, Advocate For the Respondent : Shri Arvind Dubey, Advocate ORDER 1. The present petition is against the order dated 11/08/2017 passed in Criminal Revision No.75/2017 by the 4th Additional Sessions Judge, Durg. By such order the learned court below has affirmed the order passed by the JMFC dated 24/03/2017 in Complaint Case No.2025/2016. 2. Facts as would reflect from the order of revisional court and documents attached with this petition is that complainant/petitioner herein has filed a complaint before JMFC, Durg under section 138 of the Negotiable Instruments Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that the complaint would not be maintainable on the basis of subsequent presentation and dishonour of cheques. 5. Learned counsel for the petitioner would submit that judgment rendered by the court below is per incuriam and the dictum which has been followed by the court that of Babar Hussain Vs. Arjun Singh Netam is based on the judgment of Prem Chand Vijay Kumar Vs. Yashpal Singh another reported in 2005(4) SCC 417. It is contended the ratio and principles of case which was relied on by revisional court stands over ruled by law laid down in case of MSR Leathers Vs. S. Palaniappan and another reported in (2013) 1 SCC 177. Thereby order cannot be sustained and requires to be set aside by restoring the complaint. 6. Learned counsel for the respondent on the other hand supported the order of the court below on the ground that no interference is required since order is well merited which do not call for any interference. 7. Perused the documents and the order of the court below. 8. According to the complaint two cheques one of them bearing number 033604 dated 1/11/2015 for ₹ 63,700/- and another cheque bearing number 093605 dated 2/11/2015 for ₹ 1 lakh wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.- For the purposes of this section, debt or other liability means a legally enforceable debt or other liability.] 142. Cognizance of offences. -(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a)....x....x....x (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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onoured, is forfeited only because the previous dishonour had not resulted in immediate prosecution of the offender even when a notice under clause (b) of proviso to Section 138 had been served upon the drawer. We are conscious of the fact that Sadanandan Bhadran s case (supra) has been followed in several subsequent decisions of this Court such as in SIL Import, USA v. Exim Aides Silk Exporters, (1999) 4 SCC 567, Uniplas India Ltd. and Ors. v. State (Govt. of NCT Delhi) and Anr., (2001) 6 SCC 8, Dalmia Cement (Bharat) Ltd. v. Galaxy Traders Agencies Ltd. and Anr., (2001) 6 SCC 463, Prem Chand Vijay Kumar v. Yashpal Singh and Anr., (2005) 4 SCC 417, S.L. Constructions and Anr. v. Alapati Srinivasa Rao and Anr., (2009) 1 SCC 500, Tameshwar Vaishnav v. Ramvishal Gupta, (2010) 2 SCC 329. 19. All these decisions have without disturbing or making any addition to the rationale behind the decision in Sadanandan Bhadran s case (supra) followed the conclusion drawn in the same. We, therefore, propose to deal with the three dimensions that have been highlighted in that case while holding that successive causes of action are not within the comprehension of Sections 138 and 142 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given per incuriam the court can ignore it. 19. In Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. reported in (2011) 1 SCC 694, while dealing with the issue of per incuriam , a two- Judge Bench, after referring to the dictum in Bristol Aeroplane Co. Ltd. reported in 1944 KB 718 and certain passages from Halsbury s Laws of England and Raghubir Singh reported in (1989) 2 SCC 754, had ruled thus: (Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. reported in (2011) 1 SCC 694, SCC p. 743, para 138) 138.The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of Judges of co-equal strength. In the instant case, judgments mentioned in paras 124 and 125 are by two or three judges of this Court. These judgments have clearly ignored a Constitution Bench judgment of this Court in Gurbaksh Singh Sibbia v. State of Punjab reported in (1980) 2 SCC 565 which has comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 Cr.P.C. Consequen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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