R.S. Mongia, J.@mdashThis judgment would dispose of Criminal miscellaneous No. 10910-M of 1993 as also Criminal miscellaneous No. 10921-M of 1993. Both these petitions u/s 482 of the Code of Criminal Procedure have been filed by one Shri. Sunil Behl against Berlina Constructions House, Faridabad and Mr. Navneet Sareen respectively for quashing the complaints and the summoning orders of the trial Court summoning the petitioner for alleged offence u/s 138 of the Negotiable Instrument Act read with Section 420 of the I.P.C. in the first case and u/s 138 of the Negotiable Instrument Act in the second case.
2. I will first take up Criminal miscellaneous No. 1091 H-M of 1993. As per the allegations made in the complaint, the petitioner had approached the complainant Barlina Constructions House for the purchase of some sanitary goods and other hardware items. In lieu of the price of the material worth Rs. 40952.85/- allegedly purchased by the petitioner, two cheques were issued by the petitioner in favour of the complainant in the sum of Rs. 28218.55" and Rs. 12734.30/- on 17.4.1991 and 4.5.1991 respectively. The cheques were drawn on Oriental Bank of Commerce, Sarvapriay Vihar Branch, New Delhi. The first cheque was presented to the Bank, but the same was returned on 22.4.1991 with the remarks ''Refer to the Drawer'' and again on representation of the cheque, the same was again returned on 26.4.1991 with the same remarks. The second cheque was also returned with the abovesaid remarks on 11.5.1991. According to the, averments made in the petition, the cheques were repeatedly presented to the Bank on the requests and assuran ces given by the petitioner that the cheques would be encashed. The petitioner-respondent had shown a cheque drawn in his favour in the sum of Rs. 3 lacs and told the complainant that the cheque of Rs. 3 lacs and another cheque of Rs. 1 lac were pending collection and the amount was likely to be credited in favour of the petitioner and the complainant will face no difficulty in encashing the cheques in question if these arc presented again as there will be sufficient funds. On the assurance of the petitioner, the complainant once against deposited the cheque. The first cheque deposited was returned with the remarks ''payment stopped by the drawer'' and the second cheque was returned with the remarks ''refer to drawer''. This was so done on 4.6.1991. The complainant issued registered notices to the petitioner which were duly served on him on 11.6.1991 and 12.6.1991 mentioning about the above facts and demanding the payment. Since the petitioner had failed to make the payment within 15 days of the receipt of the notices, a complaint was filed in the Court of Additional Chief Judicial Magistrate, Faridabad u/s 138 of the Negotiable Instrument Act read with Sections 406/415/420 I.P.C. After recording the preliminary evidence, as observed above, the petitioner was summoned by the trial Court u/s 138 of the Negotiable Instruments Act read with Section 420 I.P.C. vide order dated 13.2.1992.
3. Learned counsel for the petitioner argued that admittedly the cheques had been repeatedly presented to the Bank and it was only when the cheques were dishonored for the last time that the complainant chose to give notice and then filed a complaint. Since the complainant did not opt to issue any notice u/s 138(2) of the Negotiable Instruments Act after the first dishonour and filed any complaint after the first dishonour, no criminal proceedings could be launched after the complainant failed to do so after the first dishonour of the cheque. According to the learned counsel, the proceedings launched on the basis of subsequent dishonour of the cheques are wholly without jurisdiction and the complaint as also subsequent proceedings are liable to be quashed. In support of his contention, learned counsel cited judgments rendered in K.P.V. Textiles and anr. v. Maldok Chand Naresh Chand (1992) 19 C.LT 388 and in the case of Rita Khanna v. R.S. Traders (1993) 20 CLT 237 in Criminal Miscellaneous No. 7833 M of 1992 decided on 1.10.1992 as also in the case of Karnail Singh v. Ramesh Kumar Gupta (1994) 21 CriLT 209.
4. On the other hand, learned counsel for the respondents submitted that the complainant was well within his right to present the cheque to the Bank again and again after the same was dishonoured within the period of validity of the cheque (i.e. six months) and could give a notice u/s 138 of the Negotiable Instruments Act alter last dishonour and could thereafter launch criminal proceedings if the payment had not been made after the notice. He further submitted that in the present case, there had been assurances given by the petitioner after the dishonour of the cheque that if the cheque was represented, the same would be encashed and it was on the assurances of the petitioner that the cheque was re-presented to the Bank again and again. According to the learned counsel, the authorities relied upon by the petitioner were clearly distinguishable as in those cases there was no assurance placed by the complainant to have been given by the accused to present the cheque again after the dishonour that the same would be encashed. In support of his contention, learned counsel relied upon a Single bench and a D.B. judgment of Andhra Pradesh High Court reported in case of Richard Samsons Sherrat v. Stale of A. P. and Anr. (1993) 20 CLT 495 and in case of Syed Rasool and Sons v. Aildas and Company (1993) 20 CLT 676.
5. After hearing learned counsel for the parties, I am of the view that there is no force in the contention of the learned counsel for the petitioner. In K.P.V. Textiles ease (supra) the learned Single Judge of this Court held that the complainant could not have second cause of action on the same cheque by presenting the same again to the Bank after the first dishonour. However, it was also observed by the learned Judge as follows:-
"It is thus quite apparent that at no stage before the institution of the present complaint, the, accused-petitioners had in writing requested the complainant-Company to re-present the cheque which had already been dishonoured or gave any assurance that in case any such cheque is represented the same would be encashed."
6. It is apparent that if there was some averment or proof that the accused-petitioner in that case had assured the complainant that if the cheque is re-presented, the same would be encashed, then the complainant would have been justified in not launching the criminal proceedings on the first dishonour and would have been well within its rights to re-present [he cheque to the Bank again. It does not make any difference whether the assurance in such a case is in writing or oral. In Kamail Singh''s case (supra), learned Judge of this Court relied upon a Division Bench judgment of the Kerala High Court in ''Kumaresan v. Ameerappa (1993)20 CLT 357 and held that on the same cheque, there cannot be more than one cause of action and if no proceedings are launched after the first dishonour, the proceedings launched on the subsequent dishonour of the cheque would not lie. Similar was the view taken in the case of Rita Khanna (supra) by the learned Judge.
7. On the other hand the Division Bench of the Andhra Pradesh High Court after discussing the D.B. authority of the Kerala High Court, referred to above, held that the cheque dishonoured by the Bank and returned to drawer can be presented to the Bank for any number of times within the period of its validity, but action for filing complaint Under Sections 138 and 142 of the Act can be taken only once. The Division Bench of Andhra Pradesh High Court took into consideration another Division Bench judgment of Kerala High Court rendered in case of Mahadevan Sunil Kumar v. Bhadran 1991(1) KLJ 335. The Andhra Pradesh High Court also noticed
"24. The next contention relates to cause of action. It has been contended on behalf of the petitioners that dishonour of cheque by itself does not give any rise to cause of action, as payment can be made on receipt of notice. Further, it is contended that even on admitted facts there cannot be a second cause of action relating to the same cheque. The same contention has been considered by a learned single Judge of this Court (Eswara Prasad, J.) in Richard Samson Sherrat v. State of A.P. (1992) 19 CLT 495, by holding that the cheque can be 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. Cl.(a) of the proviso to Section 138 does not lay down as to the number of limes a cheque can be presented to the bank. When the statute has not laid down any limitation on the number of times that a cheque may be presented within the period of six months or any shorter period, it will not be desirable to read into the said clause any such restriction as to the number of times a cheque may be presented. A Division Bench of the Kerala High Court in Kumaresan v. Ameerappa (1993)20 CLT 357 took a view that the payee cannot have a second cause of action on the same cheque when once he had failed to institute a complaint on the strength of the first cause of action. Another Division Bench of the Kerala High Court differed from the view expressed by the Division Bench of the same High Court, referred to above, in Mahadevan Sunil Kumar v. Bhudran 1991(1) KLJ 335 and held that here can be no second cause of action on the same cheque. In Mahadevan''s case, 1991(1) KLJ 335. (he Division Bench held as follows at page 337 of KLJ ):-
"It is clear that cause of action for filing the complaint may arise on several occasions and the payee or holder in due course is entitled to present the cheque at any lime within a period of six months from the dale on which it is drawn and for filing the complaint he should have served notice of such dishonour to the drawer; the payee or holder in due course can make a second presentation of the cheque and if other conditions are fulfilled, he can launch a complaint on the hasis of the second dishonour of the cheque as the cheque would remain valid for a period of six months".
A Division Bench of the Kerala High Court in Prithviraj v. Mathew Koshy (1993)20 CLT 34 observed thus:-
"Dishonour of a cheque by itself does not give rise to a cause of action, because payment can be made on receipt of notice of demand contemplated in Clause (b) of Section 138 and in that event there is no offence, nor any attempt to commit the offence, nor even a preparation to commit the offence. Failure to pay the amount within fifteen days of receipt of notice alone is the cause of action and nothing else."
From the scheme of Section 138 and 142, it is thus seen that a cheque can be 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. So. when a cheque which has been presented to the Bank is returned, the payee or the holder in due course of the cheque has to give a, notice, in writing, to the drawer within fifteen days of the receipt of information from the bank and the drawer of such cheque must make the payment of the amount to the payee or the holder of the cheque within fifteen days of the receipt of the said notice. The person who issued the cheque may approach the payee in whose favour the cheque was issued and convince him that he will pay the amount or he will arrange to see that the amount will be paid and request for postponement of time. The cheque can be presented to the bank within the period of six months from the dale on which it is drawn or within the period of its validity, whichever is earlier. During the validity period the cheque can be presented any number of times but the action by filing a complaint u/s 138 read with Section 142 can be taken only once.
25. The Supreme Court in
9. Though I have my reservations about the judgment cited by the learned counsel for the petitioner and would rather had followed the decision rendered by the Division Bench of the Andhra Pradesh High Court, which in turn relies upon a judgment of Supreme Court and Division Bench judgment of the Kerala High Court, this matter need not detain me inasmuch as the judgments cited by the petitioner''s counsel are distinguishable on facts. As noticed above in K.P.V. Textiles case (supra), it was noticed by the learned judge that there was no assurance to the complainant or anything in writing from the accused-side that if the cheque is again presented after dishonour, the same would be encashed. In the order two authorities cited by the learned counsel for the petitioner there is nothing on the record to show that it was pleaded by the complainant that after the first dishonour, there was some sort of assurance given by the accused that the cheque may be presented again and the same would be encashed and that the cheques had been represented, only after such an assurance. In the case in band, it has definitely been pleaded that the petitioner-accused had given assurance to the complainant after the first dishonour that if the cheque is presented again, the same would be encashed.
10. Apart from what has been observed above, I am of the view that on the facts of the present case, no case has been made out for interference u/s 482 of Code of Criminal Procedure. In cases filed u/s 138 of the Negotiable Instruments Act, the Court has to entertain the same on the basis of the private complainant. If the allegations per se show that the complainant has complied with the provisions of Section 138 of the Act, the Court was entitled to take cognizance of the same. The Court has to look into the main features viz. the date of issue of the cheque, the date of dishonouring of the cheque by the Bank, the date of issue of the notice and the date of filing of the complaint in Court. If these facts are borne out from the allegations in the complaint, the Court of competent jurisdiction is entitled to take cognizance and the High Court would not entertain an application u/s 482 of the Code of Criminal Procedure. At the stage of summoning, the defence of the accused is not to be looked into.
11. For the foregoing reasons, I am of the view that no fault can be found with the order of summoning of the petitioner on the basis of the complaint filed by the complainant. Consequently, this petition is dismissed.
12. Now coming to the second case, in which the petitioner had issued a cheque in the sum of Rs. 1,33,800/- to the complainant, drawn on Punjab National Bank. After the presentation of the same to the Bank, the same was dishonoured with the remarks ''Insufficient funds'' on 14.11.1991. After complying with the provisions of Section 138 (2)d (3) of the Act, the complainant filed a complaint on 11.12.1991 in the competent court at Faridabad and after recording the preliminary evidence, the petitioner was summoned u/s 138 of the Act.
13. Learned counsel for the petitioner submitted that to being an officers under the four corners of Section 138 of the Act what is necessary is the cheque should have been drawn in favour of a person for payment of any amount of money for the discharge in whole or in part of any debt or other liability. According to the learned counsel, it has not been pleaded in the complaint or stated by the complainant in the preliminary evidence that the cheque had been issued by the petitioner to the complainant for discharge of any debt or other liability. In absence of such an averment or evidence, argued, the learned counsel, no offence u/s 138 of the Act is made out and consequently the order summoning the petitioner is liable to be quashed.
14. It has been pleaded in the complaint that the accused owed a sum of Rs. 1,33,800/- to the complainant on account of loan, salary etc. According to the learned counsel, the pleadings in the complaint are totally vague and lacked in details. It has been pleaded by the accused-petitioner that during the course of employment, the complainant had been issued blank cheques by the petitioner for the purpose of business of the petitioner and after termination of his employment, the complainant prepared a cheque in his own favour for a sum of Rs. 1,33,800/-, which he tried to encash.
15. Learned counsel for the respondents submitted that no details as to how the cheque came to be issued would be a question of evidence and it was sufficiently made clear in the complaint that the accused owed a sum of Rs. 1,33,800/- to the complainant on account of loan and salary etc. Obviously, argued the learned counsel, cheque was issued in discharge of that liability.
16. After hearing learned counsel for the parties, I am of the view that there is no merit in this petition. The cheque was issued by the petitioner and it will be a question of evidence as to under what circumstances the cheque came to be issued. It will be again a question of evidence to be led by the complainant as to in discharge of what debt or liability, the cheque was issued by the petitioner. It is sufficient compliance with the provisions of Section 138 of the Negotiable Instruments Act when it has been stated in the complaint that the petitioner owed a sum of Rs. 1,33,800/- to the complainant on account of loan and salary etc.
17. For the foregoing reasons, I find no fault in the order summoning the petitioner u/s 138 of the Negotiable Instruments Act. The petition is dismissed.
