Delhi High Court
Rajwinder Kaur vs Yoginder Singh Sagar & Another on 19 April, 2010
Author: Sanjiv Khanna
22.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P. 603/2008
Date of decision: 19th April, 2010
RAJWINDER KAUR ..... Petitioner
Through Mr. Sanjay, Advocate.
versus
YOGINDER SINGH SAGAR & ANR. ..... Respondents
Through Mr. K.K. Sharma, Advocate for the
respondent No. 1.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported
in the Digest ?
ORDER
1. The present revision petition is directed against the order dated 10th
September, 2008 passed by the learned Metropolitan Magistrate dismissing
the complaint filed by the petitioner-Ms. Rajwinder Kaur under Section
138/142 of the Negotiable Instruments Act, 1881 (hereafter referred to as
the Act, for short).
2. The impugned order dated 10th September, 2008 reads as under:-
"Present: Complainant with counsel.
Arguments on the maintainability heard.
CRL.REV.P. 603/2008 Page 1
In this case, the cheque was presented by
the complainant for encashment which was
returned back on 13.6.08 with remarks
"Insufficiency of Funds". Thereafter a notice
was issued dated 17.6.08. After issuance of the
said notice, the cheque was again presented on
7.7.08 which was again returned back with
remarks Insufficiency of funds but no notice
was issued to the accused thereafter as required
by Section 138 of the N.I.Act and the complaint
was filed.
It is evident from the aforesaid that the
provision of Section 138 and 142 of the N.I. Act
have not been complied with in true spirit and
the procedure adopted is contrary to the law.
Hence, the complaint is not maintainable and is
accordingly dismissed under Section 203
Cr.P.C.
File be consigned to record room."
3. In the complaint it is stated that the petitioner had deposited a cheque
of Rs.3 lacs issued by the respondent No. 1 in discharge of his debt and the
same was presented for payment by the petitioner to his bankers but was
returned back unpaid on account of insufficient funds in the account of the
respondent No. 1 vide memo dated 13th June, 2008. Thereafter, notice
dated 17th June, 2008 was issued by registered post with acknowledgement
card but the respondent No. 1 did not make payment within fifteen days and
has committed an offence under Section 138 of the Act. The complaint also
states that the said cheque was presented for payment on 7th July, 2008 and
was returned back unpaid vide memo dated 9th July, 2008.
4. The question raised is what is the effect of re-presentation of the
cheque by the petitioner on 7th July, 2008 after the complainant had issued
legal notice dated 17th June, 2008 on dishonour of the cheque for the first
CRL.REV.P. 603/2008 Page 2
time and whether re-presentation of the cheque on 7th July, 2008 had the
effect of erasing or wiping out the offence/right, which had accrued to the
petitioner.
5. Sections 138 and 142 of the Act read 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 be extended to two years], 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 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 thirty days] of the receipt of
information by him from the bank regarding the
return of the cheque as unpaid; and
CRL.REV.P. 603/2008 Page 3
(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.
Explanation.- For the purposes of this section,"
debt or other liability" means a legally
enforceable debt or other liability.
142. Cognizance of offences.- Notwithstanding
anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974 ),-
(a) no court shall 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 arises
under clause (c) of the proviso to section 138;
[Provided that the cognizance of a complaint
may be taken by the Court after the prescribed
period, if the complainant satisfies the Court
that he had sufficient cause for not making a
complaint within such period;]
(c) no court inferior to that of a Metropolitan
Magistrate or a Judicial Magistrate of the first
class shall try any offence punishable under
section 138.]"
6. For successfully prosecuting the drawer for an offence under Section
138 of the Act, the following four requirements are required to be
established:
(1) A cheque was drawn for payment in discharge of liability/debt.
CRL.REV.P. 603/2008 Page 4
(2) The cheque was presented for payment within its validity period.
(3) The cheque was dishonoured and payment was not made due to
"insufficiency of funds".
(4) That the complainant had issued notice to the drawer but the drawer
had failed to make payment of the cheque amount within fifteen days of
the receipt of the notice.
7. It is not unknown and common that cheques are re-presented for
payment after dishonour, during the validity period of the said cheque.
Sections 138 and 142 of the Act nowhere bars or prohibits such re-
presentation. In Prem Chand Vijay Kumar versus Yash Pal Singh &
Another, 2005 (2) C.C. Cases (SC) 142 the Supreme Court examined the
provisions of Section 138/142 of the Act and observed that on each
presentation of a cheque and dishonour a fresh right but no cause of action
accrues in favour of the payee. The payee may, therefore, without taking
pre-emptory action in form of notice under Section 138(b) of the Act, re-
present the cheque during the validity period. However, once notice under
Section 138(b) of the Act is issued, the complainant/payee forfeits his right
to file a complaint on the basis of second subsequent dishonour of a cheque
on re-presentation. It is observed that cause of action for filing of the
complaint under Section 142(c) of the Act arises only once, i.e., when a
cheque is presented and dishonoured and notice is issued under Section
138(b) of the Act. After the cause of action has arisen, it is not permissible
to the payee/complainant to create another cause of action by re-presenting
the dishonoured cheque again. The Supreme Court, however, clarified that
in case notice is not issued under Section 138(b), then the
complainant/payee is entitled to re-present the cheque and on dishonour,
issue notice and thereafter file a complaint.
CRL.REV.P. 603/2008 Page 5
8. The aforesaid ratio does not in any manner help the cause or the
stand of the respondent No. 1. In the present case, the petitioner-
complainant has filed the complaint on the basis of first dishonour of
cheque, which as per the complainant happened when memo was issued to
him on 13th June, 2008 and thereafter the complainant had issued notice
dated 17th June, 2008. The complaint is not based upon dishonour of the
cheque upon re-presentation on 7th July, 2008 and any cause of action
accruing on the basis of the said dishonour. The complaint is based upon
dishonour or non-payment of the cheque on the first presentation and the
default of the respondent No. 1 to make payment inspite of legal notice.
The complainant-petitioner has mentioned details and actual fact that he had
re-presented the cheque but that does not form basis of his cause of action
and the offence alleged in the complaint when the cheque was dishonoured
on the first presentation and payment was not made inspite of notice. Re-
presentation of the cheque on 7th July, 2008 as per the decision of the
Supreme Court in Prem Chand Vijay Kumar (supra), cannot furnish fresh
cause of action and constitute a default under Section 138/142 of the Act.
However, re-presentation does not obliterate or wash away the alleged
offence when the cheque was presented for the first time, and was
dishonoured and notice was issued to the respondent No. 1 to make
payment.
9. In view of the aforesaid, the impugned order passed by the learned
Metropolitan Magistrate dated 10th September, 2008 cannot be sustained
and is set aside.
10. At this stage, learned counsel for the respondent No. 1 states that the
complaint was filed belatedly and not within the prescribed period of
limitation. Learned counsel for the petitioner disputes the said fact. The
CRL.REV.P. 603/2008 Page 6
date on which the complaint was filed is not mentioned in the revision
petition. I need not go into these issues and these are aspects for the learned
Metropolitan Magistrate to examine and go into. The revision petition is
disposed of.
11. The petitioner will appear before the learned Metropolitan
Magistrate on 20th May, 2010, when a date of hearing in the matter will be
given.
12. It is clarified that this Court has not expressed any opinion on merits
and the findings given above are for the purpose of disposal of the present
revision petition. All other aspects are left open. In the facts and
circumstances of the case, there will be no order as to costs.
DASTI.
SANJIV KHANNA, J.
APRIL 19, 2010
VKR
CRL.REV.P. 603/2008 Page 7
