Konark Cables Pvt. Ltd. vs Premier Engg. And Electrical ...
1994 Latest Caselaw 529 Del

JUDGMENT

Dalveer Bhandari J.

1. This revision petition is directed against the order dated September 6, 1993, passed by the learned Metropolitan Magistrate. A very question of law arises in this case regarding the interpretation of section 138 of the Negotiable Instruments Act, 1881. Section 138 reads as under :

"138. Dishonour of cheque for insufficiency, etc., of funds in the account. - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, 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 the 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 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."

2. Similarly, section 142 of the Negotiable Instruments Act is reproduced as under :

"Cognizance of offences - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), -

(a) no court take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;

(b) such complaint is made within one month of the date on which the cause of action arisen under clause (c) of the proviso to section 138;

(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try and offence punishable under section 138."

3. If both section 138 and section 142 of the Act are read together, the legislative intention becomes crystal, clear, that a cheque can be presented to the bank within a period of six months from the date of issuance or within the period of its validity and on each occasion when the cheque is presented in the bank and is dishonoured, the petitioner would get a fresh cause of action to file a complaint and the limitation would be computed from that point of time.

4. The same controversy has been a matter of interpretation in a number of cases by this court and by various other High Courts. There seems to be consistency in the approach and courts have taken the view that during the period of validity, a cheque can be presented any number of times and on each occasion when the cheque is dishonoured, the complaint will have a cause of action.

5. This court in Madan Mohan v. K. M. Menon [1993] Rajdhani Law Reporter 119; [1994] 79 Comp Case 710 had taken the same view where the court has laid down that the cheque can be presented any number of times during the period of six months, during the period of its validity and each time it will have a separate cause of action.

6. Similar view has been taken in another judgment by the Madras High Court, i.e., K. V. Iyer v. Chitra and Co. [1990] 2 MWN 47. The relevant portion of the said judgment is reproduced below :

"The second presentation of the cheque had been made by the respondent-company only as requested by the petitioner. It cannot be stated that the cheque dishonoured, when presented for the second time will not give rise to a cause of action enabling the petitioner to prefer a complaint under section 138 of the Act. The complaint having been filed within the statutory period of one month from the date of cause of action, namely, March 7, 1990 after the issuance of a notice to the petitioner as prescribed under the Act, it goes without saying that complaint filed as such is perfectly on order and maintainable."

7. In this case, the learned Metropolitan Magistrate has taken the view that the cheque can only be presented once. This view is contrary to the legislative intention and settled position of law.

8. Learned counsel appearing for the respondents has invited my attention to the judgment delivered by this court in Maheshwari Protein Ltd. v. State [1990] DRJ 29. The interpretation of law which has been declared in this case is also not different from what has been taken in the other two judgments referred above.

9. The impugned order of the learned Metropolitan Magistrate does not reflect a correct reading of Madan Mohan v. K. M. Menon [1994] 79 Comp Case 710 (Delhi), K. V. Iyer v. Chitra and Co. [1990] 2 MWN 47 and other cases. The legislative intention and its interpretation by courts are absolutely clear. Consequently, the order dated September 6, 1993, passed by the Metropolitan Magistrate in this case is set aside to the extent that the complaint field by the complainant is time barred.

10. The revision is allowed and parties are directed to appear before the court of the learned Metropolitan Magistrate on September 2, 1994. The registry is directed to send the record of this court through a special messenger.