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TMI Blog1995 (1) TMI 410X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 480 of 1990. In Kumaresan's case the Division Bench has approved the view taken in Crl. R.P. No. 480 of 1990 and has disapproved the view taken in Mahadevan's case (1991 (1) Ker LT 651). 2. Before dealing with the point arising for consideration).-we may refer briefly to the conflict settled by Kumaresan's case. In Mahadevan's case Balakrishnan, J. has held that cause of action for filing the complaint may arise on several occasions and the payee or holder in due course is entitled to present the cheque at any time within a period of 6 months from the date at which it was drawn and if other conditions are fulfilled he can launch a complaint on the basis of the second or any subsequent dishonour of the cheque as the cheque would remain valid for a period of 6 months. The learned Judge has obviously proceeded on the basis that successive causes of action can, arise on the repeated presentation and dishonour of the same cheque during its validity and the payee or holder in due course can initiate prosecution for offence under Section 138 of the Negotiable Instruments Act, 1881 (for short the Act ) with reference to any one of the causes of action if he satisfie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he first cause of action which accrued to him following the first dishonour the complaint now filed on the basis of the second dishonour is not maintainable in law. Treating it as a complaint filed with reference to the first cause of action it is not maintainable in law since it has been filed after the expiry of the period fixed under Section 142(b) of the Act. The authority strongly relied upon in support of the contentions was Kumaresan's case. 5. The interesting question thus arising for consideration is whether the payee or holder in due course of a dishonoured cheque can validly initiate prosecution for an offence under Section 138 of the Act with reference to a second cause of action if he had not taken advantage of the first cause of action accrued to him and prosecuted the offender in time? In other words, the question is can successive cause of action for prosecution arise on the basis of one and the same cheque and if the payee or holder in due course has failed to initiate prosecution on the first cause of action whether he will forfeit his right to do so on the basis of the second or any subsequent cause of action? 6. Even at the outset we may state that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue is presented for payment within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier. The other conditions to constitute the offence are : (1) the payee should have made a demand for payment by registered notice after the cheque is returned unpaid, and (2) the drawer should have failed to pay the amount demanded within 15 days of the receipt of 'notice. Section 139 of the Act casts a rebuttable prescription that a holder of a cheque has received the sarne towards discharge of a liability. Section 140 of the Act specifically precludes the drawer from pleading that he had no reason to believe that the cheque would be dishonoured. Another important aspect to be noted is that as per Section 142 the offence has been specifically made cognisable only on the basis of a written complaint filed by the payee or holder in due course of the cheque. Section 142(b) specifically prescribes a period of one month for filing a complaint from the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the Act. 9. The scheme of the provisions contained in the new Chapter would indicate that it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in clue course who fails to exercise his right to prosecute the offender at the first instance either voluntarily or at the request of the offender will lose the benefit conferred by the provisions even if he is able to establish the ingredients of the offence and satisfy the other requirements of law statutorily prescribed for initiating prosecution for an offence under Section 138 of the Act? 10. While considering the above question it is relevant to note that in law a cheque can be presented for payment repeatedly any number of times within six months from the date of drawing of the cheque or within the period of its validity whichever expires earlier. Such repeated presentation even after dishonour at each time may be either voluntary or at the instance of the drawer. Even after such repeated dishonour it is open to the payee or holder in due course to defer further action based on dishonour. It may also be open to the payee or holder in due course to take further action to complete the cause of action as provided in clauses (b) (c) of the proviso to Section 138 and not to file a complaint within the time specified under Section 142(b) of the Act for his own reasons. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in and again during the period of its validity, get it dishonoured again and again, issue notice under clause (b) of the proviso to Section 138 of the Act on equal number of occasions and keep the draft of complaint waving at the drawer of the cheque like the sword of Damocles without actually filing the same in a court of law thus keeping the drawer in a tantalised condition during the entire period of the validity of the cheque. From the express provisions of the Chapter stipulating exact periods for giving notice, for repayment of money and for institution of criminal proceedings it does not appear to be the intention of the legislature to allow the aggrieved party to keep the criminal remedy in an embryonic condition for an indefinite time. Further it was also contended that the provision under consideration being penal should be construed strictly and if there is any doubt regarding their scope and applicability it should be resolved in favour of the accused. Relying upon the above principles it was submitted that the view which was adopted in Kumaresan's case which is in favour of the accused is to be preferred to the view that any number of cause of action can be created ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions initiated for offence committed under Section 138 of the Act also will definitely bar repeated prosecutions and convictions of the drawer of the cheque on the basis of the same cheque. Article 20(2) of the Constitution of India will also preclude an accused from being prosecuted and punished more than once for the same offence. Even if acquitted in a prosecution, issue estoppel will also bar a fresh prosecution and conviction of the accused for the same Offence. As such in our view the undesirable consequences which the Division Bench thought would follow if it is held that more than one cause of action can be had on the basis of one and the same cheque, may not follow at all. 13. Secondly, we find that the basic conclusion reached by the learned Judges, namely more than one cause of action on the same cheque is not contemplated or envisaged by the provisions of the Act is also not correct. First of all, we do not find anything in the provisions in Chapter XVII of the Act or in the object and scheme of the provisions which would support such a conclusion. Understanding the provisions in the ordinary sense, we find that the provisions do not justify such a conclusion. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... object for which they were specifically incorporated in the Act by way of an amendment is that they do permit creation of successive causes of action during the period of the validity of the cheque. We do not find any justification to hold that once a payee or holder in due course fails to file a complaint on the basis of the first cause of action he will forfeit his right to prosecute the drawer of the cheque even if he is able to satisfy all the ingredients of the offence against the drawer and the other conditions to be complied with for filing a complaint. Such a conclusion will be clearly against the plain meaning of the provisions contained in Section138 and 142 of the Act and the object for which the said Sections are incorporated in the Act. It will have the effect of excluding an act which will amount to an offence as contemplated by the provisions, out of its purview and defeating the object for which the provisions were specifically enacted by way of amendment. It will only help to perpetrate the mischief sought to be prevented by the provisions. If the wording of the provisions would reasonably permit the creation of a second or subsequent cause of action, it may not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its language. This would be to defeat, not to promote, the object of the Legislature; to misread the statute and misunderstand its purpose. A Court is not at liberty to put a limitation on general words which is not called for by the sense or the objects, of the mischiefs or the enactment, and no construction is admissible which would sanction a fraudulent evasion of an Act. (11th Edn. page 254) The learned author has summarised the modern trend of construction as thus: The tendency of modern decisions, upon the whole, is to narrow materially the difference between what is called a strict and a beneficial construction. All statutes are now construed with a more attentive regard to the language and criminal statutes with a more rational regard to the aim and intention of the legislature, than formerly............................................................................The effect of the rule of strict construction might almost be summed up in the remark that, where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any other enactment. (see Dyke v. Elliot, (1872) LR 4 PC 184) We find that the above formulation of the principle has been cited with approval by the House of Lords in London and North Eastern Railway Co. v. Bekkiman, (1946) 1 All ER 255 and in M. Narayanan Nambiar v. State of Kerala (AIR 1963 SC1116):(1963(2)CriLJ186).In the last mentioned case, Subbarao, J. (as he then was)referring to the Prevention of Corruption Act, 1947 observed that The Act was brought in to purify public administration. When the legislature used comprehensive terminology to achieve the said purpose, it would be appropriate not to limit the content by construction when particularly the spirit of the statute is in accord with the words used there. In principles of Statutory Interpretation', the learned author G.P. Singh has relying upon a large number of Supreme Court decisions has observed thus : So language permitting a penal statute may also be construed to avoid a lacuna and to suppress the, mischief and advance the remedy in the light of the rule in Heydon's case (5th Edn. page 501) (Emphasis supplied) Rule in Heydon's case which is now well known as Purposive Construction or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Such a view, if taken, will only help to perpetuate the mischief sought to be remedied by the legislature by incorporating penal provisions in the Act by an amendment. As such we are of the view that the decisions in Kumaresan's case (1991 (1) Ker LT 893) and Chellakkannu Nadar's case (1993 (2) KLT 831) (1994 Cri LJ 3515) cannot be approved as correct. The view taken in Mahadevan Sunilkumar v. Bhadran (1991 (1) Ker LJ 651) is to be approved as correct. 17. We find that the High Courts of Bombay, Calcutta, Andhra Pradesh and Madras have taken the same view after expressing dissent with the view taken in Kumaresan's case in the decisions reported in Rakesh Podwal v. Narayan Joglekar (1993 Cri LJ 680 (DB) (Bom), Sekhar Gupta v. Subhas Chandra Mondal (1992 (73) Com. Cas. 590) (Cal), Syed Rasool Sons v. Aildas Co. (1992 Cri LJ 4048 (DB) (AP) Kesavan v. Parvathan (1994 (1) KLT (SN) page 25 (case No. 23) and Manivannan v. Eyer King Garments (1994 (2) Ker LT (SN) 2.2 case No. 29 (Madras). Punjab and Haryana High Court alone had followed Kumaresan's case in the decisions reported in K.P.V. Textiles v. M.C. Naresh Chand (1994 (79) Com Cas. 125) and Gulshan Rai v. Dars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct in order to protect the interest of the payee or holder in due course and to enhance the acceptability of cheques in general in the matter of settlement of liabilities. Successive causes of action may arise on the basis of one and the same cheque for filing complaint under Section 142 subject to the restrictions contained in Sections 138 and 142 of the Act. Even if successive causes of action arise, only one prosecution and conviction or acquittal is possible in view of Section 300 of the Cr. P.C. since the complaint is bound to be on the basis of the dishonoured cheque which is bound to be produced in court as the basis for the prosecution. The cause of action may get barred or become ineffective if no complaint is filed in time. So long as cheque remains unpaid and the payee or holder in due course is able to establish all the ingredients of the offence and satisfy the other requirements of the provisions contained in Sections138 and 142 of the Act, a complaint will be maintainable in spite of the fact that he has not filed any complaint in time on the basis of one or more cause of actions accrued to him earlier. We would accordingly dismiss the Criminal Miscellaneous Case. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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