TMI Blog1998 (8) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... t in liquidation of the loan he obtained from the latter. The cheque was presented in the bank for encashment on 05.01.1991 but was returned for want of sufficient funds in the account of the respondent. The appellant then sent a lawyer's notice to the respondent on 15.01.1991 calling upon him to pay the aforesaid amount. On receipt of the notice the respondent approached the appellant and requested for some time to pay the amount. In view of the assurance so given the appellant did not initiate any further proceeding but as the respondent did not keep his promise he presented the cheque in the bank once again on 04.05.1991. This time also the cheque was dishonoured for want of sufficient funds. Another notice dated 09.05.1991 was then served upon the respondent demanding payment of the amount but he failed to make the payment. The appellant then filed a complaint against the respondent on 30.06.1991 Under Section 138 of the Negotiable Instruments Act, 1881 ('Act' for short). On that complaint cognizance was taken and the respondent was summoned to face the trial. After entering appearance the respondent filed an application stating that in view of the Division Bench judgment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king Public Financial Institutions and Negotiable Instruments laws (Amendment) Act, 1988. The 'objects and reasons' clause of the Bill which introduced the Amending Act indicates that the new chapter was incorporated to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in case of bouncing of cheques due to insufficiency of funds in the accounts or for the reason that it exceeds the arrangements made by the drawer with adequate safeguards to prevent harassment of honest drawers. Section 138 of the Act reads as under: "Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recourse to which normally, is taken out of compulsion and not choice. For the above reasons it must be held that a cheque can be presented any number of times during the period of its validity. Indeed that is also the consistent view of all the High Courts except that of the Division Bench of the Kerala High Court in Kumaresan (supra) which struck a discordant note with the observation that for the first dishonour of the cheque only a prosecution can be launched for there cannot be more than one cause of action for prosecution. 6. The next question that falls for our determination is whether dishonour of the cheque on each occasion of its presentation gives rise to a fresh cause of action within the meaning of Section 142(b) of the Act. Section 142 reads as under: "Notwithstanding anything contained in the CrPC, 1973 (a) no court shall take congnizance of any offence punishable Under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138; (c) no court inferior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts which negates the concept of successive causes of action. One of them is that for dishonour of one cheque there can be only one offence and such offence is committed by the drawer immediately on his failure to make the payment within fifteen days of the receipt of the notice served in accordance with Clause (b) of the proviso to Section 138. That necessarily means that for similar failure after service of fresh notice on subsequent dishonour the drawer cannot be liable for any offence nor can the first offence be treated as non est so as to give the payee a right to file a complaint treating the second offence as the first one. At that stage it will not be a question of waiver of the right of the payee to prosecute the drawer but of absolution of the drawer of an offence, which stands already committed by him and which cannot be committed by him again. 10. 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 limitativ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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