A. Chakrapani vs State of Andhra Pradesh and Another

K.C. Bhanu, J.—The sole accused in C. C. No. 121 of 1999 on the file of the learned Additional Munsif Magistrate, Karimnagar, filed the present petition u/s 482 of the Code of Criminal Procedure to quash the proceedings therein.

The facts leading to the filing of the present petition in brief are that the second respondent filed a private complaint on February 18, 1998, against the petitioner before the court below alleging that the petitioner issued a cheque bearing No. 823222, dated July 19, 1997, for Rs. 90,000. The second respondent presented the cheque on January 7, 1998, in the bank. The cheque was dishonoured for insufficiency of funds. The second respondent received intimation on January 15, 1998, from his bank about the dishonour of the cheque. Therefore, the second respondent issued a statutory demand notice on January 25, 1998, to the petitioner, which the petitioner received on January 31, 1998, calling upon him to make payment of the amount covered by the dishonoured cheque, but the petitioner did not choose to pay the amount. The private complaint was registered as C. C. No. 121 of 1998 u/s 138 of the Negotiable Instruments Act (for short, hereinafter to be referred to as "the Act"). The accused in that case filed this petition to quash the proceedings therein.

This court while admitting the petition on September 7, 1999, granted interim stay of all further proceedings in the case. The second respondent filed a petition to vacate the interim stay. Since without hearing the main petition finally the vacate stay petition cannot be disposed of, and with the consent of both parties, the main petition itself has been heard and is being disposed of finally.

The only point urged by learned counsel for the petitioner is that the second respondent issued a notice to the petitioner through his advocate on January 16, 1998, but without tiling a complaint in pursuance thereof, he again issued a notice on January 25, 1998, to the petitioner and filed the complaint on the strength of the second notice. Therefore, in view of the decision of the apex court in Sadanandan Bhadran Vs. Madhavan Sunil Kumar, , the complaint tiled in pursuance of the second notice is not maintainable and per se affords a ground to quash the proceedings, since the second respondent did not choose to file a complaint on the basis of the first notice. Per contra, learned counsel for the second respondent has contended that the second respondent did not instruct the advocate to issue the notice and even assuming that the second respondent got issued the first notice through his advocate and filed the complaint on the basis of the second notice, the complaint is still within the period prescribed by Section 142 of the Act from the date of the first notice, and hence the petition should be dismissed. The learned Additional Public Prosecutor supported the arguments advanced by learned counsel for the second respondent.

The admitted facts in this case are that the second respondent issued a notice dated January 25, 1998, to the petitioner demanding him to make payment of the amount covered by the dishonoured cheque, that the petitioner received that notice on January 31, 1998, and that the complaint was filed on February 18, 1998.

The allegation of the petitioner is that the second respondent though issued a legal notice to him through advocate on January 16, 1998, without filing a complaint in pursuance thereof, he chose to issue another notice to him on January 25, 1998 and lodged the complaint in pursuance of the second notice. The second respondent has asserted in his vacate stay petition that he did not instruct the advocate to issue notice to the petitioner and being unaware of the issuance of the notice by the advocate to the petitioner, he issued a notice to the petitioner on January 25, 1998. Whether the second respondent instructed the advocate to issue notice to the petitioner or not is a question of fact, which cannot be decided in this petition. Even otherwise, assuming for the sake of argument that the second respondent instructed the advocate to issue notice to the petitioner, the present complaint is maintainable, for, the first notice was, on the own showing of the petitioner, issued on January 16, 1998 and the complaint was filed on February 18, 1998. Even assuming that the date of notice is the date of receipt of the notice by the petitioner, the complaint can still be said to have been filed well within the stipulated period of 45 days from the date of receipt of notice by the drawer of the cheque, in that the second respondent had time up to March 2, 1998, to file the complaint. Therefore, it is inconsequential whether the second respondent filed the complaint in pursuance of the first notice or the second notice, inasmuch as in either case the complaint is very much within the period of limitation.

The Supreme Court has held in the case of Sadanandan Bhadran Vs. Madhavan Sunil Kumar, that on each presentation of the cheque and its dishonour, a fresh right--and not cause of action--accrues in favour of a payee and he may, therefore, without taking pre-emptory action in exercise of his such right under Clause (b) of Section 138 of the Act, 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, but once he gives a notice under Clause (b) of Section 138 he forfeits such right.

The above principle laid down by the apex court has no application to the present case for two reasons. First, in that case the complainant therein presented the cheque to the bank on January 5, 1991 and on the cheque being bounced issued a notice to the payee on January 15, 1991 and again presented the cheque on May 4, 1991 and when the cheque was dishonoured he issued another notice on May 9, 1991, to the payee in pursuance of which he filed a complaint on June 30, 1991. In those circumstances, the apex court has held that a payee cannot accrue cause of action by going on presenting the cheque and issuing notices on every dishonour and thus cannot save limitation which had already elapsed on the 45th day from the date of receipt of the first notice by the payee. Secondly, in that case the payee therein presented the cheque twice during the period of the first notice and the second notice and on the basis of the notice issued for the second time he lodged the complaint. In the present case, the second respondent did not present the cheque twice in between the period from the alleged first notice and the second notice. Accepted as true the issuance of the alleged first notice, the second respondent can be said to have issued notice alone twice, but he did not present the cheque twice, as was the case in the case cited by learned counsel for the petitioner.

It is apposite to reproduce below what the Supreme Court has laid down in the same case (page 818) :

"The other impediment to the acceptance of the concept of successive causes of action is that it will make the period of limitation under Clause (c) of Section 142 otiose, for, a payee who failed to file his complaint within one month and thereby forfeited his right to prosecute the drawer, can circumvent the above limitative clause by filing a complaint on the basis of a fresh presentation of the cheque and its dishonour. Since in the interpretation of statutes the court always presumes that the Legislature inserted every part thereof for a purpose and the legislative intention is that the every part should have effect, the above conclusion cannot be drawn, for, that will make the provision for limiting the period of making the complaint nugatory."

It is, therefore, clear that the rationale behind laying down the principle mentioned in paragraph No. 7 (supra) by the apex court is to prevent a payee, who forfeited his right to prosecute the drawer by not filing complaint within the stipulated period, from circumventing the limitation by filing a complaint on the basis of a fresh presentation of the cheque and its dishonour. It is thus axiomatic that even if a payee issues more than one notice to the drawer, the former can validly maintain a complaint filed on the basis of any such notices, so long as the complaint is within the period of limitation from the date of cause of action that has arisen out of the first notice. It is germane to note that in the present case the second respondent does not appear to have made an attempt to save limitation by issuing the second notice, as the complaint on the basis of either of the notices is very much within the limitation as observed above.

Viewed from any angle, there are absolutely no grounds to quash the proceedings, and hence the petition must fail.

In the result, the petition is dismissed.