Uttarakhand High Court
C482/577/2023 on 29 March, 2023
Office Notes, reports,
orders or proceedings
SL.
Date or directions and COURT'S OR JUDGES'S ORDERS
No
Registrar's order with
Signatures
29.03.2023
C482 No. 577 of 2023
Hon'ble Sharad Kumar Sharma, J.
Mr. Rajendra Dobhal, Senior
Advocate, assisted by Mr. Shubhang Dobhal,
Advocate, for the applicant.
Mr. Pankaj Joshi, Brief Holder, for
the State.
The facts of the case, and as
pleaded in the present C482 Application, is
that the present applicant has issued a
negotiable instrument on 15.12.2020. In
order to restrain its presentation for
encashment, the applicant is said to have
issued a notice on 30.11.2020 to the
respondent, directing thereto not to present
the same for its encashment. The fact
remains, that the cheque was presented on
15.12.2020 and the same was dishonoured
on 17.12.2020, and thereafter, a legal notice
was issued to the applicant on 11.01.2021.
However, the respondent had then
again presented the cheque for the second
time, and the same was also dishonoured
yet again on 25.02.2021. Consequent to it,
another legal notice was issued to the
applicant on 20.03.2021. The question
would be, that as to whether at all, the
cause of action could be chosen to have
accrued to the respondent on the second
presentation of the cheque and upon the
same being dishonoured by the bank.
The Hon'ble Apex Court, in a
judgment reported in 2005 (4) SCC 417,
Prem Chand Vijay Kumar Vs. Yashpal Singh
and Another has observed that the cause of
action on the non-payment of a negotiable
instrument would be when the same is
dishonoured on its first presentation. If the
cheque is thereafter presented for its
encashment at a later stage, that will not
give a cause of action to initiate the
proceedings under Section 138 of the
Negotiable Instruments Act, because the
dishonour of cheque on each presentation
does not give a fresh right or cause of action
to present it again during the period of its
validity, but it does not give a right or a fresh
cause of action. The complaint ought to
have been filed within a period of one
month from the date of its first dishonour or
on a receipt of notice from the lawyer.
The said principle has been laid
down in paras 8 and 14 of the judgment of
Prem Chand Vijay Kumar (supra) which are
extracted hereunder:-
"8. Clause (a) of the proviso to Section
138 does not put any embargo upon the payee to
successively present a dishonoured cheque during
the period of its validity. This apart, in the course
of business transactions it is not uncommon for a
cheque being returned due to insufficient funds or
similar such reasons and being presented again by
the payee after sometime, on his own volition or
at the request of the drawer, in expectation that it
would be encashed. The primary interest of the
payee is to get his money and not prosecution of
the drawer, recourse to which, normally, is taken
out of compulsion and not choice. On each
presentation of the cheque and its dishonour, a
fresh right-and not a cause of action - accrues in
his favour. He may, therefore, without taking pre-
emptory action in exercise of his such right under
clause (b) of Section 138, go on presenting the
cheque so as to enable him to exercise such right
at any point of time during the validity of the
cheque.
14. Thus, it is well settled that if
dishonour of a cheque has once snowballed into a
cause of action it is not permissible for a payee to
create another cause of action with the same
cheque."
Issue notice to respondent No. 2.
Steps would be taken by the
applicant within a period of one week from
today.
List thereafter.
Till the next date of listing, the
summoning order dated 09.08.2021, as
issued by the Court of 3rd Additional Chief
Judicial Magistrate, Dehradun, in Complaint
Case No. 3628 of 2021, Manipal Vs.
Mahendra Kumar Agarwal, qua the present
applicant, would be kept in abeyance.
Stay Application No. IA/1/2023
stands disposed of accordingly.
(Sharad Kumar Sharma, J.)
29.03.2023
Mahinder/
