Raghuvir Goswami vs Nirmal Thakur
2005 Latest Caselaw 1042 Del

JUDGMENT

R.S. Sodhi, J.

1. This revision petition seeks to challenge the order of the Additional Sessions Judge, New Delhi dated 11.02.2002, whereby the learned Judge has allowed revision petition against the summoning order dated 24.02.2001 on the ground that in the pre-summoning statement of the complainant he had mentioned that he had issued two notices.

2. The court on the basis of of the second notice being time barred has allowed the revision petition and dismissed the complaint. The facts of the case as noted by the Additional Sessions Judge are as follows:-

".....2. That the accused approached the complainant to the tune of Rs.2 lacs to the revisionist who executed a pronote on 26.01.1997. After one month accused/revisionist gave him Rs.1,10,000/- in cash and a cheque amounting to Rs.90,000/- was issued in his favor. The same cheque 31.03.1997 name was dischonoured by the bankers of accused with remarks 'Stop Payment'. He issued him a legal notice and accused/revisionist met him and requested him to re-present the said cheque in June 1997 and assured him that the same will be encashed on its presentation. As per his assurance he represented the cheque again in the month of June but the same was dishonoured by the bankers of the accused/revisionist with remarks 'Stop Payment'. He issued a legal notice dated 14.6.1997. He also submitted that with mala fide intentions respondent No.2 did not give reply to the issuance of first legal notice to the respondent. He submitted that in this case firstly stoppage of payment in view of judgment of the Hon'ble Supreme Curt in M/s.Modi Cements Limited v. Shri Kuchil Kumar Nandi decided on 2.3.1998 is held as under:

"That dishonour of cheque on the grounds of Stoppage of Payment also attracts provisions of Section 138 of the Negotiable Instruments Act."

Learned counsel also referred to 1998 (2) JCC (SC) 91 Sadanandan Bhadran v. Madhavan Sunil Kumar wherein it is held as under: "Firstly cheque should have been presented to the bank within six months of its issue or within the period of its validity whichever is earlier. Secondly, payee should make a demand for payment by registered notice after the cheque is dishonoured and finally the drawer should have failed to pay the amount within 15 days of the receipt of notice." Then only within a month of such date of cause of action complaint. When payee presenting the cheque in Bank again and again dishonoured, it is held that in such a case no fresh cause of action shall arise, meaning thereby tht cause of action arises only once when due notice is given for the first time.

3. In reply, learned counsel for the respondent only argued and submitted that in view of the latest judgment of the Hon'ble Supreme Court in 2001(1) Crimes 198 (SC) in M/s.Dalmia Cement (Bhart) Limited v. M/s Galaxy Traders & Agencies Limited and others. The Drawer even after issuing first notice, second notice can be issued afresh because the cause of action will arise on the second notice and hence the complaint is mantainable."

3. Counsel for the petitioner submits that there is nothing on record to show that the first notice has been sent under Section 138 of the Negotiable Instruments Act which is mandatory to put the process into motion. It is only the second notice which is a valid notice under Section 138 of the Negotiable Instruments Act and that is only that notice that could be taken note of. The first notice was no notice in the eyes of law as regards process under Negotiable Instruments Act.

4. He submits that the revisional court without looking into the validity of the first notice has chosen to treat it as a notice under Section 138 of the Act, which can only be done, as a matter of fact, upon trial.

5. Counsel for the respondent, on the other hand, contends that the petitioner having made a statement on oath that he has sent two notices is deemed to have sent a notice under Section 138 of the Act and, therefore, cannot take advantage of the second notice, the complaint having been filed beyond time.

6. Heard counsel for the parties and have gone through the judgment under challenge. It appears to me that there is nothing on record to show that the first notice was a notice under Section 138 of the Negotiable Instruments Act. The Supreme Court judgment relied upon by learned counsel for the respondent is of no avail. It is only when one valid notice is given under Section 138 of the Act that the limitation starts running. Any notice which is not in conformity with the requirement of Section 138 of the Act is not a valid notice for the purpose of putting into motion the process of law under the Negotiable Instruments Act.

7. In that view of the matter, the first notice not being a notice under Section 138 of the Negotiable Instruments Act could not be used to count limitation. Therefore, the order under challenge is bad and is set aside. The complaint is restored to file and number and the matter is remanded for proceedings in accordance with law. Parties to appear before the trial court on 28th July, 2005.

8. Criminal Revision Petition 543/2002 is disposed of.