Ved Mahajan vs Janki Nath Budki

Mr. Justice J.P. Singh, Judge

The petitioner-Ved Mahajan issued Cheque No. 665890 dated 25.09.2006 for Rs. 3,30,000/- in favour of Janki Nath Budki-respondent. It

was dishonoured when presented for payment. The respondent learnt about dishonour of Cheque on 06.10.2006. He sought payment of the

amount covered by the Cheque serving Notice on the petitioner. The payment was avoided on one or the other pretext.

Another Notice was sent by the respondent to the petitioner on 14.10.2007 seeking payment within fifteen days with the intimation that non-

payment of amount within fifteen days would entail prosecution u/s 138 of the Negotiable Instruments Act, 1881.

Learned Judicial Magistrate, Ist Class (Fourth Additional Munsiff), Jammu issued process on the respondent's Complaint prima facie finding

commission of offence u/s 138 of the Negotiable Instruments Act by the petitioner. The petitioner seeks quashing of proceedings before the

learned Magistrate on respondent's Complaint. Considered the submissions of learned counsel for the parties.

Cognizance of offence punishable u/s 138 of the Negotiable Instruments Act is permissible only upon a Complaint, in writing, made by the

'payee' or, the 'holder in due course' of the Cheque, as the case may be, when the Complaint was made within one month of the date on which

cause of action arises.

Cause of action would arise when the drawer of the Cheque fails to make payment of the 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 Notice in terms of Section 138(b) of the Act.

The cause of action accrued to the respondent when the petitioner did not make payment for the dishonoured Cheque within fifteen days of the

receipt of Notice in terms of Section 138(b) of the Act.

Cognizance of the offence could, therefore, be taken within one month of the accrual of cause of action. Complaint filed after about one year of

the accrual of cause of action and that too without any cause much less sufficient, which had disabled the complainant to file Complaint within the

statutory period, was, therefore, untenable in terms of the provisions of Section 142 of the Negotiable Instruments Act, in terms whereof no Court

shall take cognizance of any offence punishable u/s 138 of the Act unless the Complaint was made within one month of the date on which the cause

of action arose.

Proceedings initiated by the learned Magistrate on respondent's Complaint, are, therefore, abuse of the process of Court.

Accordingly, allowing this Petition, the proceedings initiated by learned Judicial Magistrate, Ist Class, (Fourth Additional Munsiff), Jammu on

respondent's Complaint, are quashed dismissing the respondent's Complaint.