TMI Blog2008 (10) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst them under Section 138 of the Negotiable Instruments Act, 1881, was dismissed. (2) The factual matrix involved herein is not in dispute. (3) Appellants had entered into some business transactions in regard to supply of certain materials with Respondent No.1. Appellant No.2 as a proprietor of appellant No.1 issued a cheque for a sum of Rs. 2 lacs in favour of the complainant-respondent on or about 22.6.2003. Appellants contend that the said cheque was issued by way of security. (4) The said cheque was presented in the bank on 23.6.2003. It was returned un-paid by the banker of the appellants on the ground of insufficient funds. (5) Another notice was sent for service on the proprietor of S.L. Structures and Engineers on or about 8.7.2003. However, admittedly, the said notice was not served upon the appellants. (6) The said cheque was again presented before the bank on 30.8.2003, and was again dishonoured. (7) Respondents served another notice upon the appellant No.2 describing him as a proprietor of S.L. Structures and Engineers and calling upon him to pay the said amount of Rs. 2 lacs within 15 days from the date of receipt thereof. (8) However, in response ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d counsel appearing on behalf of the respondent, on the other hand, contented; (i) The cheque having been presented within a period of six months, the order taking cognizance was not barred in terms of the proviso appended to Section 138 of the Negotiable Instruments Act; (ii) The first notice having not been served and the appellants themselves having called upon the respondents to withdraw the second notice, cannot now be permitted to urge that the deposit of the cheque for the third time and issuance of third notice was illegal and without jurisdiction. (14) The Negotiable Instruments Act, 1881 was enacted to define and amend the law relating to Promissory Notes, Bills of Exchange and Cheques. (15) Chapter XVII of the Act provides for penalties in case of dishonour of cheques for insufficiency of funds in the accounts of the drawer thereof. (16) Indisputably,Chapter XVII, which was inserted by the Banking Public Financial Institutions and Negotiable Instruments Laws(Amendment) Act, 1988( 66 of 1988) and came into force on 1.4.1989, was incorporated to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedure, 1973( 2 of 1974)- (a) no Court shall take cognizance 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: Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period. (c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138. (18) Indisputably, by reason of Section 138 of the Act a penal provision has been laid down that the issuer of any cheque would commit an offence if the cheque when presented is dishonoured. (19) For the said purpose a legal fiction was created. The proviso appended to the said provision, however, restricts the application of the main provision by laying down the conditions which are required to be complied with before any order taking cognizance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant-respondent to withdraw the same, no exception can be taken to the step taken Abundanti Cautela by the complainant-respondent to present the cheque for the third time and issue another notice on 17.12.2003. (28) Sadanandan Bhadran (Supra) whereupon strong reliance has been placed by Mrs.Desai, learned counsel lays down the law in the following terms: 7. Besides the language of Sections 138 and 142 which clearly postulates only one cause of action, there are other formidable impediments which negate 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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