Aditya Narayan Panda vs Sarat Kumar Bhutt

A.S. Naidu, J.—This Criminal Misc. Case has been filed invoking inherent jurisdiction of this Court u/s 482, Code of Criminal Procedure with a prayer to set aside the order dated 12.11.1999 passed by the learned J.M.F.C., Bhubaneswar in ICC No. 191 of 1998 as well as for quashing the entire proceeding of the said case.

Bereft of all unnecessary details, the short facts which need for appreciating inter se dispute are as follows:

On 12.1.1998, the Petitioner alleged to have issued a Cheque for an amount of Rs. 4,25,000/- drawn on State Bank of India, IDCO Towers Branch, Bhubaneswar in favour of the Opp. Party. The said cheque was presented in Bank by the Opp. Party on 3.3.98 through his Banker i.e. the Bank of India, Chandka Industrial Estate Branch. On 7.3.1998 the Opp. Party received an intimation from the Bank that the said cheque had bounced with the remark "unpaid due to insufficient funds". Thereafter on 17.3.1998, the Opp. Party issued a Lawyer''s notice to the present Petitioner which returned unserved on 22.3.98 with a postal endorsement ''want of correct address''. After return of the unserved notice, the Opp. party filed a complaint case on 3.4.1998 alleging commission of an offence u/s 138 of the Negotiable Instruments Act against the Petitioner in the Court of the learned S.D.J.M., Bhubaneswar which was registered as ICC Case No. 146 of 1998. However, the opp. party did not pursue the said case which was consequently dismissed u/s 203, Code of Criminal Procedure It is further averred that the opp. party once again presented the said Cheque on 9.4.1998 which was within six months from the date of issue of the cheque. On 13.4.1998, an intimation was received from the Bank that the cheque has bounced once again. On 18.4.1998, the opp. party sent another Advocate''s notice which was duly served on the Petitioner on 24.4.1998. The Petitioner also gave his reply to the notice on 27.4.1998. Thereafter, the opp. party filed a complaint case against the Petitioner for commission of offence u/s 138 of the Negotiable Instruments Act in the same court i.e. the S.D.J.M., Bhubaneswar which was registered as ICC Case No. 191 of 1998.

The moot question which needs determination in this criminal misc. case is whether a second complaint case u/s 138 of the Negotiable Instruments Act can be initiated by presenting the cheque for the second time.

Learned Counsel for the Petitioner relying upon a decision in the case of Dillip Kumar Patra and Another Vs. Jayanta Kumar Mohanty, strenuously submitted that once a complaint case was dismissed, a second complaint was not maintainable. To substantiate the said submission, learned Counsel also relied upon the decision in the case of K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr., (1999) 17 OCR (SC) 555.

In the decision of Dillip Kumar Patra (supra), this Court relying upon the decision of the Supreme Court in the case of Jatinder Singh and Ors. v. Ranjit Kaur, (2001) 20 OCR (SC) 374 observed as follows:

The Apex Court held that there is no provision in the Code or any other statute which debars & complainant from preferring a second complaint on the same allegations if the first did not result in conviction, acquittal on discharge and ultimately came to a conclusion that a second complaint on the same facts can only be made under very exceptional circumstances. Even so a second complaint is permissible depending upon how the complaint happens to be dismissed at the first instance.

It is no more res integra that if no complaint is filed within one month from the date of service of notice, the payee would be forbidden from launching prosecution circumventing the provisions contained in Section 142 of the Act.

Relying upon the decision in the case of K. Bhaskaran (supra), learned Counsel for the Petitioner submitted that once an Advocate''s notice returned back to the complainant as ''unclaimed'', it should be deemed to have been served unless it is proved that it was not served and the date of ''unclaimed'' endorsement would be considered as the date of commencement of 15 days. This view was taken as the Negotiable Instruments Act stipulates ''give notice'' but not ''received notice''. According to the learned Counsel, admittedly notice was issued on 17.3.1998 and the same was returned unserved on 22.3.1998. Thus, the time of filing starts from the said date and ceased after lapse of 15 days. Therefore, the second complaint case is grossly barred by time and is not maintainable.

At the other hand, learned Counsel for the opp. party relying upon the decision of the Supreme Court in the case of Dalmia Cement (Bharat) Ltd. v. Galaxy Traders and Agencies Ltd. and others, 2001 (II) OLR (SC) 489 submitted that to constitute an offence u/s 138 of the Negotiable Instruments Act, the complainant is obliged to prove its ingredients which include the receipt of notice by accused under Clause (b). According to the said decision, it should be kept in mind that it is not the ''giving'' of the notice which makes out the offence, but it is the ''receipt'' of the notice by the drawer which gives the cause of action to the complainant to file a complaint within the statutory period.

Relying upon the decision in the case of Sadanandan Bhadran Vs. Madhavan Sunil Kumar, , learned Counsel for the opp. party submitted that Clause (a) of the proviso to Section 138 did not put any embargo upon the payee to successively present a dishonoured cheque during the period of its validity. But then, on each presentation of the cheque and its dishonour a fresh right and not cause of action, accrues. The payee or holder of the cheque without taking pre-emptory action in exercise of his right under Clause (b) of Section 138 of the Act, can go on presenting the cheque so as to enable him to exercise such right at any point of time as long as the cheque is valid. The Supreme Court, however, put an embargo by observing that once a notice under Clause (b) of Section 138 of the Act is ''received'' by the drawer of the cheque, the Payee or the holder of the cheque forfeits his right to again present the cheque, as cause of action accrues when there is failure to pay the amount within the prescribed period, and the period of limitation starts to run and the same cannot be stopped on any account. According to the said decision, the period for filing the complaint should be reckoned from the date immediately falling the day on which the period of 15 days from the date of the receipt of the notice by the drawer expires.

After hearing learned Counsel for the parties and perusing the impugned order and other materials, I find that though the cheque issued on 12.1.1998 was presented on 3.3. 1998 and the same bounced on 7.3.1998, the notice issued on 17.3.1998 could not be served. The opp. party, however, filed ICC Case No. 146 of 1998 which he allowed to be dismissed realising the fact that notice was not served. The opp. party presented the cheque once again on 9.4.1998 which bounced on 13.4.1998. The Advocate''s notice was issued on 18.4.1998 and the same was served on 24.4.1998 and the complaint case was filed on 11.5.1998. It is pertinent to mention here that the earlier complaint case was allowed to be dismissed for non-prosecution on 28.4.1998. As has been held by the Supreme Court, the complainant, on extraneous circumstances, can file a second complaint. According to me, this is one such situation where the complainant realising that he might face difficulty in course of hearing of the case as the notice issued by him returned unserved, did not want to take a chance. As the period stipulated for presenting the cheque still survived he preferred to present the same once again. At the cost of repetition, it is once again reiterated that a person can present the cheque for any number of time till the cheque remains valid. Thus, presentation of the cheque for the second time cannot be construed to be unwarranted. Admittedly after the cheque bounced for the second time, Advocate''s notice was issued which was served on the Petitioner and thereafter the second complaint case was initiated after receipt of the reply. The court below considered all the aspects and rightly came to the conclusion that the complaint case No. 191 of 1998 was maintainable and took cognizance of the offence and also refused to recall the order taking cognizance. I do not find any illegality or irregularity in the impugned order and decline to interfere with the same. Accordingly, the criminal misc. case is dismissed.