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Sudarshan Khaitan & Another v/s Patheja Forgings Auto Parts and Manufacturers & Another


    Decided On, 14 June 2001

    At, High Court of Judicature at Bombay


    D.V. Mirajkar for petitioners. Prakash Naik for respondent No.1. Mrs. S. R. Kumbhai, A.P.P. for State.

Judgment Text

Heard learned counsel for the petitioner and the respondents. This matter arises out of a complaint filed by the respondent before the Additional Chief Metropolitan Magistrate, 33rd Court, Esplanade, Bombay. The petitioner had issued a cheque for Rs. 61,25,000/- drawn on Corporation Bank, Fort Branch, Bombay on 14-9-1994, in favour of the respondent. The cheque was presented for encashment and the same was dishonoured on 17-9-1994. The respondent again presented the cheque and again it was dishonoured on 19-10-1994. After it was twice dishonoured, the respondent had sent a notice of dishonour on 28-10-1994 calling upon the petitioner to make payment within three weeks from the date of receipt of notice. Thereupon the respondent again presented the cheque and got it dishonoured on 2-2-1995 and another notice was sent on 7-2-1995.

2.The question therefore arose is whether the complainant after the cause of action was being arisen, on the issuance of notice of dishonour on 28-10-1994, can again create a cause of action for filing complaint merely by presenting the cheque and got it dishonoured on 2-2-1995. This position has been made clear by the Supreme Court in its judgment in Sadanandan Bhadran vs. Madhavan Sunil Kumar reported in (1998) 6 SCC page 514. Para 7 of this judgment reads as follows:

"Besides the language of sections 138 and 142 which clearly postulates only one cause of action, there 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."

3.Therefore in view of the principal laid down by the Supreme Court, the complaint filed by the respondent before the Court below is not maintainable and the process issued against him is held to be illegal.

4.Mr. Prakash Naik the learned counsel for the respondent however contended that the notice sent by the complainant on 28-10-1994 cannot be treated as a notice under section 138 of N.I. Act because the period stipulated therein for making payment was of three weeks whereas the section says only 15 days. This argument cannot be countenanced to because the 15 days provided under section 138 of N.I. Act for payment is to be observed by the debtor and not the creditor. The payee in his own wisdom stipulates the time for payment after receipt of the notice. Sometime the payee may insist that the payment should be made within 24 hours from the date of receipt of notice. Sometime in some cases he may say it is to be paid after six months. The time shows within which the payment should be made by the drawer as the stipulation made by the payee in the notice is immaterial. The law clearly says that on receipt of the notice of dishonour unless he pays within 15 days, the cause of action for filing the complaint in favour of the payee of the cheque has arisen. Ther

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efore this argument of the learned counsel for the respondent has to be rejected, on the foregoing reasons. In view of this Criminal Revision Application is allowed. Rule is made absolute in terms of prayer clause (a). No order as to costs. Parties to act on the ordinary copy of this order issued by Associate of this Court. Revision application allowed.