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Dushyant Dang S/o Shri Ramesh Chand Dang Versus Jairam Das Verma S/o Shri Jagdev Verma

2017 (12) TMI 393 - CHHATTISGARH HIGH COURT

Dishonour of the cheque - complaint under 138 of the Negotiable Instruments Act, 1881 - accrual of cause of action -Held that:- While interpreting word “cause of action” under section 142 of the Negotiable Instruments Act in relation to the commission of an offence or the institution of a complaint, reading of section 138 and 142 of the Negotiable Instruments Act makes it abundantly clear that the cause of action to institute a complaint comprises the three different factual prerequisites. It wa .....

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it is dishonoured upon presentation to the bank, the holder’s right to prosecute the drawer for the default committed by him remains valid and exercisable. By reason of a fresh presentation of a cheque followed by a fresh notice in terms of section 138 proviso clause (b), the drawer gets an extended period to make the payment and thereby benefits in terms of further opportunity to pay to avoid prosecution. Such fresh opportunity cannot help the defaulter on any juristic principle, to get a comp .....

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Facts as would reflect from the order of revisional court and documents attached with this petition is that complainant/petitioner herein has filed a complaint before JMFC, Durg under section 138 of the Negotiable Instruments Act, 1881 after dishonour of the cheque given by the respondent. After registration of the complaint, a preliminary objection was preferred by the accused on the ground that alleged two cheques which were issued in his favour dated 1/11/2015 and 2/11/2015 respectively were .....

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eque was served on 18/02/2016 which was replied by the accused on 03/03/2016. Thereafter the complaint u/s 138 of Negotiable Instruments Act was filed on 11/03/2016 before the JMFC. It was therefore contended that since after presentation of the cheque for the first time in the month of January, 2016 and after dishonour thereof, since no complaint was preferred within stipulated statutory period i.e. after service of first notice, subsequent complaint on the basis of second dishonour and notice .....

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y the complainant before the revisional court of 4th Additional Sessions Judge, Durg. The Additional Sessions Judge also affirmed the order of dismissal by holding that cause of action started running after receipt of first notice itself on 15/01/2016 and when no complaint was filed within statutory period the subsequent complaint on the basis of presentation of the cheque for 2nd time and to get it dishonoured cannot be sustained. The revisional court mainly relied on the judgment of Babar Huss .....

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shpal Singh & another reported in 2005(4) SCC 417. It is contended the ratio and principles of case which was relied on by revisional court stands over ruled by law laid down in case of MSR Leathers Vs. S. Palaniappan and another reported in (2013) 1 SCC 177. Thereby order cannot be sustained and requires to be set aside by restoring the complaint. 6. Learned counsel for the respondent on the other hand supported the order of the court below on the ground that no interference is required sin .....

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or dishonour of the two cheques on 2/01/2016. Admittedly, no complaint was filed on the basis of the first dishonour and the notice of default when the cause of action arose as per section 142(b) and 138(c) of Negotiable Instruments Act. However after first dishonour of cheque, in the month of January, 2016, during it's validity period cheque were again deposited subsequently in the month of February and dishonour of the cheques were informed by the bank on 11/02/2016 to the complainant. The .....

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read alongwith section 138 (c) of the Negotiable Instruments Act, 1881. 9. For the sake of brevity section 138 and 142 of the Negotiable Instruments Act, 1881 are reproduced hereunder:- 138. Dishonour of cheque for insufficiency, etc., of funds in the account. -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 retu .....

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e cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of in .....

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e Code of Criminal Procedure, 1973 (2 of 1974)- (a)....x....x....x (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) ….x....x....x (2) ….x....x....x 10. As has been held in cas .....

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ssion of an offence or the institution of a complaint, reading of section 138 and 142 of the Negotiable Instruments Act makes it abundantly clear that the cause of action to institute a complaint comprises the three different factual prerequisites. It was further held that right of the holder to present the cheque for encashment carries with it a corresponding obligation on the part of the drawer. The omission or the failure of the holder to institute prosecution does not, therefore, give any im .....

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ion 138 proviso clause (b), the drawer gets an extended period to make the payment and thereby benefits in terms of further opportunity to pay to avoid prosecution. Such fresh opportunity cannot help the defaulter on any juristic principle, to get a complete absolution from prosecution. 11. The Supreme Court in case of MSR Leathers Vs. S. Palaniappan and another reported in (2013) 1 SCC 177 has held as under in paras 18, 19 and 35 :- 18.With utmost respect to the Judges who decided Sadanandan Bh .....

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s case (supra) has been followed in several subsequent decisions of this Court such as in SIL Import, USA v. Exim Aides Silk Exporters, (1999) 4 SCC 567, Uniplas India Ltd. and Ors. v. State (Govt. of NCT Delhi) and Anr., (2001) 6 SCC 8, Dalmia Cement (Bharat) Ltd. v. Galaxy Traders & Agencies Ltd. and Anr., (2001) 6 SCC 463, Prem Chand Vijay Kumar v. Yashpal Singh and Anr., (2005) 4 SCC 417, S.L. Constructions and Anr. v. Alapati Srinivasa Rao and Anr., (2009) 1 SCC 500, Tameshwar Vaishnav .....

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dran v. Madhavan Sunil Kumar reported in (1998) 6 SCC 514 and hold that prosecution based upon second or successive dishonour of the cheque is also permissible so long as the same satisfies the requirements stipulated in the proviso to Section 138 of the Negotiable Instruments Act. The reference is answered accordingly. The appeals shall now be listed before the regular Bench for hearing and disposal in light of the observations made above. 12. In the afore-said judgment, judgment of Prem Chand .....

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. Arjun Singh Netam reported in 2017(2) C.G.L.J. 413 by this court is per incuriam. Therefore, this court in the principles as has been held in case of Union of India and others Vs. R.P. Singh reported in (2014) 7 SCC 340 can ignore the same. 14. The Supreme Court has laid down the law that the judgements which are per incuriam can be ignored and has laid down the principles as under. The principles therefore as laid down at para 18 and 19 of Union of India and others Vs. R.P. Singh reported in .....

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ning on which it is based, is found, on that account to be demonstrably wrong. At a subsequent stage of the said decision it has been observed as follows: (A.R. Antulay v. R.S. Nayak reported in (1988) 2 SCC 602, SCC p. 654, para 47) 47.... It is a settled rule that if a decision has been given per incuriam the court can ignore it. 19. In Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. reported in (2011) 1 SCC 694, while dealing with the issue of per incuriam , a two- Judge Bench, .....

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