Rama Bangia & Ors. vs M/S. Pushpa Builders Ltd. & Ors.
1998 Latest Caselaw 668 Del

ORDER

D.K. Jain, J.

1. By this revision petition under Section 397 Cr.P.C., the petitioners call in question the order passed by the learned Trial Court on 22 August 1996, whereby petitioners' complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act'), pertaining to cheques No. 510519, 510520 & 510521 was summarily dismissed on the ground that it was barred by limitation.

2. Since the question falling for consideration in this petition is a pure question of law, it is unnecessary to state the facts, which led to the filing of the complaint under Section 138 of the Act. The short question for consideration is whether after the dishonour of a cheque, it is open to the payee to re-present it repeatedly, within the period of its validity, and if the cheque is dishonoured again, issue a notice of demand under clause (b) of the proviso to Section 138 of the Act and in case of default in making payment as demanded, file a complaint on the basis of the fresh cause of action, which accrues to him thereby for a second or third time as the case may be?

3. I have heard learned counsel for the parties.

4. The cheques in question were presented twice during the period of their validity, each time followed by a notice under Section 138 of the Act. The learned Trial Court, while computing the period of limitation, took into consideration only the first notice issued by the petitioners and served on the respondents on 26 September 1994 in respect of cheque No. 510519 and 3 October 1994 in respect of cheques No. 510520 and 510521, thus ignoring the subsequent notice issued likewise. It is pointed out that the cheques were finally presented to the bankers for payment on 23 November 1994 (510519) and 15 November 1994(510520 and 510521) but were received back unpaid with the remarks "insufficient funds" and "Not arranged for" respectively; on receipt of this information, a fresh notice demanding payment in respect of all the three cheques was issued to the contesting respondents on 28 November, 1994; the said demand notice was served on the contesting respondents on 29 November 1994; there was no response to the said notice and therefore, on respondents' default in making payment as demanded for the dishonoured cheques, within fifteen days of receipt of the last notice, a complaint was filed on 23 December 1994, which was within time and the learned Trial Court was in error in holding the complaint filed as barred by time. In support of the stand that a fresh cause of action to file a complaint under the said provisions arises in favour of a payee on the re-presentation of the cheque and its dishonour, reliance is placed on a recent decision of this Court in O.P. Chirania Vs. Director of Lotteries etc., 1998(IV) AD (Delhi) 197 and two other decisions in Madan Mohan Vs. K.M. Menon & Ors., and M/s. Konark Cables Pvt. Ltd. Vs. M/s. Premier Engg & Electrical Corporation and Anr. .

5. Mr. Gurbax Singh, learned counsel for the contesting respondents, while relying on a Division Bench decision of the Kerala High Court in Kumaresan Vs. Ameerappa, 1992(1) Crimes 23, however, submits that the Trial Court has rightly ignored the subsequent notice issued on 28th November 1994 and dismissed the complaint of the petitioners as barred by limitation. He also disputes the factum of service of legal notice on the contesting respondents on 29 November, 1994.

6. I am not persuaded to agree with learned counsel for the respondents. From the material available on the record of the Trial Court, including the acknowledgement card for service of the last notice, dated 28 November 1994, it prima facie, appears that the notice was received in the office of respondent No.1 company on 29 November 1994, but at this stage it will not be proper to record a conclusive finding on this aspect of the matter because it may prejudice the case of the respondents in trial. Mr. Singh has, however, not been able to satisfy the Court that in case the notice dated 28 November 1994 was in fact received by the contesting respondents on 29 November 1994, the complaint will still be barred by limitation, as is sought to be pleaded.

7. Regarding the main question, posed above, so far as this Court is concerned, the issue is no longer res integra. Relying on a Full Bench decision of the Kerala High Court in M/s. S.K.D. Lakshmanan Fireworks Industries and anr. Vs. K.V.S. Sivarama Krishnan and anr., 1995 Crl.L.J. 1384 and the decisions of the Bombay and Madras High Courts, this Court in O.P. Chirania's case (supra) has held that so long as a cheque remains unpaid, the payee or holder in due course will certainly be entitled to present the cheque again, of course within a period of six months from the date on which it was drawn or within the period of its validity, whichever is earlier, and if the cheque is again dishonoured, no provision in Chapter XVII of the Act would expressly preclude the payee or holder in due course from issuing a notice of demand under clause (b) of the proviso to Sec. 138 of the Act and in case of default in making payment as demanded, from filing a complaint on the basis of fresh cause of action, which accrues to him thereby for a second or third time, as the case may be.

8. In the light of the said authoritative pronouncements, with which I am in respectful agreement, the view taken by the learned Trial Court cannot be sustained. As a matter of fact, the learned Trial Court has not even addressed itself on this aspect of the matter and has completely ignored the notice issued by the petitioners on 28 November, 1994, which was available on the record and taken the view that the cheque can be presented only once. Obviously, the view taken is not in consonance with the settled position of law.

9. In view of the Full Bench decision of the Kerala High Court in thecase of S.K.D. Lakshmanan Fireworks Industries and anr. (supra), the Division Bench decision of the same High Court in Kumaresan Vs. Ameerappa (supra), relied upon by learned counsel for the contesting respondents, can no longer be considered to be good law.

10. For the foregoing reasons, the revision petition is allowed and the impugned order is set aside to the extent that the complaint in respect of cheques No. 510519, 510520 and 510521 cannot be thrown out as barred by limitation and has to be considered. Since the contesting respondents have already been summoned in another complaint filed by the petitioners against them, pertaining to cheque No. 510518 and that case is stated to be listed on September 1998, the learned Trial Court will also take up the complaint, subject matter of the present petition, on the same date and proceed further in accordance with law.

11. Any observation hereinabove will not be taken as expression of final view on the merits of the complaint and all issues, including the question of limitation, will have to be proved by the complainant in accordance with law.

12. The Trial Court's record be sent back forthwith.