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2022 (4) TMI 511 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - second and successive presentation of a cheque - legality and judicial propriety of order of cognizance - maintainability of the complaint for a cause of action, when the cheque could not be honoured for insufficient funds on an earlier occasion - HELD THAT:- When a cheque is presented for encashment and stands dishonoured, the payee is required to issue a notice to the drawer demanding payment of the amount and in case, such request is not obliged, complaint under Section 138 of the N.I. Act is filed for the drawer having committed the offence. The question is, whether on the basis of a statutory notice issued by OP No.1 subsequent to dishonour of cheque about five months before, the learned court below could have entertained the complaint and taken cognizance of offence under Section 138 of the N.I. Act as against the petitioner? More or less a similar question was before the Supreme Court in M/S. SICAGEN INDIA LTD. VERSUS MAHINDRA VADINENI & ORS. [2019 (2) TMI 545 - SUPREME COURT], wherein, it has been held that even a second statutory notice after re-representation of cheque is maintainable in law. In fact, the issue before the Supreme Court was, whether, a criminal complaint based on a subsequent or successive statutory notice filed under Section 138 of the N.I. Act is maintainable. In the decision, the Supreme Court observed that such an issue is no longer res integra and referred to one of its earlier judgment in SADANANDAN BHADRAN VERSUS MADHAVAN SUNIL KUMAR [1998 (8) TMI 541 - SUPREME COURT], where it was held to the extent that second and successive presentation of a cheque is legally permissible as long as it is within six months or validity of the cheque, whichever is earlier. The Court in the present case finds that OP No.1 did not send any statutory notice after the cheque was dishonoured in the month of May, 2010 but once again presented it within the validity period of the cheque and thereafter, issued the statutory notice as required under law and under such circumstances, it cannot be said that the complaint is invalid. With the above conclusion, the Court holds that the contention of the petitioner vis-à-vis maintainability of the complaint on the ground raised is misconceived and therefore, cannot be sustained. The other grounds which have been raised challenging the filing of criminal complaint need no discussion which may be agitated by the petitioner during and in course of trial as a means of defence before the learned court below. Application dismissed.
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