TMI Blog2017 (10) TMI 976X X X X Extracts X X X X X X X X Extracts X X X X ..... ak in this application under section 482 Cr.P.C. has challenged the impugned order dated 25.02.2003 passed by the learned S.D.J.M., Jagatsinghpur in I.C.C. Case No. 127 of 2002 in taking cognizance of the offence under section 138 of the Negotiable Instruments Act, 1881 (hereafter N.I. Act ) read with section 420 of the Indian Penal Code and issuance of process against him. The opposite party is the complainant and the petitioner is the accused in the complaint petition. The relevant dates for the adjudication of the issue involved in this application which are mentioned in the complaint petition are as follows:- The cheque in question which was for an amount of ₹ 17,511/- (rupees seventeen thousand five hundred eleven) was issued by the petitioner in favour of the complainant Orissa Machinery Sanitary on 20.12.2001 bearing no.233903 drawn on the Cuttack Central Co-operative Bank Ltd. at Kujanga Branch towards the cost of the purchased articles. The cheque was presented by the complainant in Syndicate Bank, Jagatsinghpur Branch on 12.06.2002 for collection of dues. The cheque was dishonored on 17.06.2002 by the Cuttack Central Cooperative Bank, Ltd. Kujang Branch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction arises under clause (c) of the proviso to section 138 of the N.I. Act as per the clause (b) to section 142(1) of the N.I. Act. It is further contended that in the case in hand, the bank intimated the complainant regarding dishonour of the cheque on 20.06.2002 and the personal notice was served on the petitioner on 04.07.2002 by the complainant stipulating fifteen days for payment of the dues. If the payment was not made within the stipulated period and the cause of action arose then the complaint petition should have been filed within one month from such date as per the clause (b) to section 142(1) of the N.I. Act which has not been done inasmuch as the complaint petition was filed on 21.12.2002. It is further contended that after service of the first notice on the petitioner on 04.07.2002, there is no provision under the N.I. Act to serve a second notice by registered post on 26.10.2002 as was done in this case. The second notice dated 26.10.2002 is obviously much beyond the period of fifteen days as prescribed under clause (b) of the proviso to section 138 of the N.I. Act. It is further contended that the cause of action would arise on the basis of first valid notice, if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice. 33. We are in agreement with the above analysis. 34. In K.R. Indira -Vrs.- Dr. G. Adinarayana [AIR 2003 SC 4789 : (2003) 8 SCC 300)], a two-Judge Bench of this Court observed that the offence under Section 138 of the NI Act could be completed if all the above components are satisfied. ** ** ** ** ** ** ** ** 42. Section 142 of the NI Act prescribes the mode and so also the time within which a complaint for an offence under Section 138 of the NI Act can be filed. A complaint made under Section 138 by the payee or the holder in due course of the cheque has to be in writing and needs to be made within one month from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. The period of one month under Section 142(b) begins from the date on which the cause of action has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oured; (b) that the cheque was presented within the prescribed period; (c) that the payee made a demand for payment of the money by giving a notice in writing to the drawer within the stipulated period; and (d) that the drawer failed to make the payment within 15 days of the receipt of the notice. If we were to proceed on the basis of the generic meaning of the term 'cause of action' certainly each of the above facts would constitute a part of the cause of action but then it is significant to note that Clause (b) of Section 142 gives it a restrictive meaning, in that, it refers to only one fact which will give rise to the cause of action and that is the failure to make the payment within 15 days from the date of the receipt of the notice. The reason behind giving such a restrictive meaning is not far to seek. Consequent upon the failure of the drawer to pay the money within the period of 15 days as envisaged under Clause (c) of the proviso to Section 138, the liability of the drawer for being prosecuted for the offence he has committed arises, and the period of one month for filing the complaint under Section 142 is to be reckoned accordingly. The co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pretation that on each presentation of the cheque and its dishonour a fresh right and not cause of action accrues in his favour. He may, therefore, without taking peremptory action in exercise of his such right under Clause (b) of Section 138, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. But, once he gives a notice under Clause (b) of Section 138, he forfeits such right for in case of failure of the drawer to pay the money within the stipulated time, he would be liable for the offence and the cause of action for filing the complaint will arise. Needless to say, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of fifteen days from the date of the receipt of the notice by the drawer, expires. 11. For the foregoing discussion, this appeal stands dismissed as the appellant had earlier taken recourse to Clause (b) of Section 138 of the Act but did not avail of the cause of action that arose in his favour Under Section 142(b) of the Act. In case of S.L. Construction and Anr. -Vrs.- Alapati Srinivasa Rao and Anr. repo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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