Gulshan Rai vs Darshan Lal

V.K. Jhanji, J.—The present petition u/s 482 of the Criminal Procedure Code, 1973, has been filed by the petitioner for the quashing of complaint dated July 18, 1990, order of summoning dated August 3, 1990, of the Additional Chief Judicial Magistrate and also against the order dated July 5, 1991, of the Additional Sessions Judge, Kurukshetra, whereby his revision petition against the aforesaid order of summoning was dismissed. The complaint dated July 18, 1990, was filed u/s 138 of the Negotiable Instruments Act, 1881 (in short, "the Act").

As per the averments made in the petition, the petitioner issued a cheque of Rs. 5,000 dated February 15, 1990, drawn on Bareli Corporation Bank Limited, Karol Bagh, New Delhi, towards part payment for the purchase of basmati rice. The cheque was presented to the State Bank of India, Ambala City, by the respondent, which was returned on April 10, 1990, by the bank with the endorsement "refer to drawer". After the cheque was dishonoured, the respondent did not issue any notice within the first 15 days from the date of information from the bank regarding the dishonour of the cheque as unpaid. He again presented the cheque on May 29, 1990, but it was again dishonoured. It was only thereafter that the respondent issued a legal notice to the petitioner on June 9, 1990, i.e., within 15 days of the second presentation. On the failure of the petitioner to make the payment, a complaint was filed by the respondent before the Judicial Magistrate. Before the Judicial Magistrate, a draft for Rs. 5,000 was paid to the respondent who has since got the same encashed. Quashing of the complaint, the order of summoning and the order passed by the Additional Sessions Judge in the revision petition filed against the order of summoning, has been sought on the ground that u/s 138 of the Negotiable Instrument Act, 1881, the respondent was required to issue notice within 15 days from the date of intimation by the bank regarding the dishonour of the cheque and it does not give any right to the respondent to prosecute the petitioner, on the cheque which was dishonoured on the second presentation.

Notice of the petition was given to the respondent. The respondent has not filed any reply to the petition.

Counsel for the petitioner in support of her arguments has relied upon the judgments in K.P.V. Textiles and Another Vs. Malook Chand Naresh Chand, and Kumaresan (N. C.) v. Ameerappa [1992] 74 Comp Cas848 (Ker) : [1991] 3 RCR 172 (Ker). In these judgments, it has been held by the court that no prosecution can be lodged against the accused on the basis of the cheque again presented, but not honoured as the complainant could not have a second cause of action on the same cheque. No judgment to the contrary has been cited by counsel for the respondent. In view of the aforesaid judgments, this petition deserves to be accepted.

Consequently, this petition shall stand allowed and order dated August 3, 1990, of the Additional Chief Judicial Magistrate, Kurukshetra, order dated July 5, 1991, of the Additional Sessions Judge, Kurukshetra, and complaint, annexure P-1 stand quashed.