ORDER [ENTITY], J.
1. The petitioner herein who is accused No. 1 in [CASE NUMBER] on the file of Additional Judicial First Class Magistrate, Avanigadda, in Krishna District invokes inherent powers and seeks quashing of the said proceedings.
2. A brief resume of facts is necessary.
The 1st respondent herein supplied prawns worth Rs. 1,78,738/- in the month of March/April, 1994 to the petitioner herein. A sum of Rs. 1,14,936/- was paid by the petitioner. For the balance amount a cheque bearing No. 952648, dated 27.7.1994 was issued. The cheque was dishonoured by State Bank of India, Governor Pet Branch, Vijayawada, as there is no sufficient amount. The 1st respondent issued a notice dated 17.10.1994 demanding the petitioner to pay the cheque amount.
A complaint was filed on 11.11.1994 before the Judicial First Class Magistrate, Avanigadda, alleging that the petitioner committed an offence under [SECTION] of the [ACT] (for short "[ACT]") and [SECTION], [ACT]. The same was forwarded under [SECTION], [ACT] to the police station, Avanigadda for investigation and report. The Police, Avanigadda, registered it as [CASE NUMBER] and investigated into and submitted a final report. Thereupon, the learned Magistrate dismissed the complaint on 3.11.1995.
Thereafter another complaint was filed on 26.2.1996 with the same allegations mentioned in the 1st complaint dated 11.11.1994. The learned Magistrate took cognizance and summons were issued on 12.4.1996. The 1st respondent is said to have made the petitioner and his father as accused in the said case.
3. The petitioner and his father filed [CASE NUMBER] before this Court to quash the proceedings. This Court quashed the proceedings against the petitioner's father by an order dated 30.4.1998.
4. [CASE NUMBER] was filed before the Judicial First Class Magistrate, Avanigadda by the petitioner to set aside the 2nd complaint alleging that the same is not maintainable. The Magistrate dismissed the said petition stating that the plea of limitation raised by the petitioner had to be construed with reference to the filing of the complaint but not for taking cognizance. Aggrieved by the same the petitioner once again approached this Court for quashing of the proceedings invoking inherent powers.
5. Mr. [ENTITY], learned Senior Counsel for the petitioner assails the order on the ground that the cause of action arises only once, under [SECTION] of the [ACT] and the 2nd complaint is not maintainable. He also places reliance on the judgment reported in [PRECEDENT]. He also contends that the petition is barred by limitation and the 2nd complaint cannot be treated as a protest petition.
6. Mr. [ENTITY], learned Counsel for the 1st respondent contends that the 1st respondent presented the original complaint in time in Court and that has been forwarded to the police. The police filed the final report and the same was eaten away by white ants. Hence he filed 2nd complaint before the Court, which was treated as continuation of the complaint under the protest petition. He supports the order of the tower Court in taking cognizance of the case on the strength of 2nd complaint.
7. The learned Public Prosecutor contends that it is not a fit case where the inherent powers can be exercised by this Court. The matter has to be relegated to trial.
8. Adverting to the same [SECTION] of [ACT] reads as follows :
"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 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 theamount 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 with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the 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 fifteen days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice."
9. [SECTION] of [ACT] reads as follows :
"Cognizance of offences Notwithstanding anything contained in the [ACT], 1973 (2 of 1974),
(a) no Court shall take cognizance of any offence punishable under [SECTION] 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 [SECTION] [SECTION];
(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]."
10. It is clearly stated by the Supreme Court in [PRECEDENT] 's case (supra), as under:
"[SECTION] of the Act containing the fascicuie of [SECTION] was brought into the statute book with effect from April 1, 1989 by [SECTION] of the [ACT]. The 'objects and reasons' clause of the Bill which introduced the [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] 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 debtor 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 havecommitted an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year or with fine which may extend to twice the amount of the 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 fifteen days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque wilhin fifteen days of the receipt of the said notice.'
5. On a careful analysis of the above [SECTION] it is seen that its main part creates an offence when a cheque is returned by the Bank unpaid for any of the reasons mentioned therein. The significant fact however, is that the proviso lays down three conditions precedent to the applicability of the above section and, for that matter, creation of such offence and the conditions are: (i) the cheque should have been presented to the Bank within six months of its issue or within the period of its validity whichever is earlier; (ii) payee should have made a demand for payment by registered notice after the cheque is returned unpaid; and (iii) that the drawer should have failed to pay the amount within 15 days of the receipt of notice. It is only when all the above three conditions are satisfied that a prosecution can be launched for the offence under [SECTION]. So far as the first condition is concerned Clause (a) of the proviso to [SECTION] does not put any embargo upon the payee to successively present a dishonoured cheque during the period of its validity. This apart, in course of business transactions it is not uncommon for a cheque being returned due to insufficient funds or similar such reasons and being presented again by the payee after sometime, on his own volition or at the request of the drawer, in expectation that it would be encashed. Needless to say, the primary interest of the payee is to get his money and not prosecution of the drawer, 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 limes 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 [PRECEDENT] (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] of the Act. [SECTION] reads as under :
Cognizance of offences Notwithstanding anything contained in the [ACT], 1973,
(a) no Court shall take cognizance of any offence punishable under [SECTION] 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 [SECTION] [SECTION];
(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].' From a plain reading of the above [SECTION] it is manifest that a Competent Court can take cognizance of a written complaint of an offence under [SECTION] if it is made within one month of the date on which the cause of action arises under [SECTION] [SECTION].
7. In a generic and wide sense (as in [SECTION] of the [ACT]) 'cause of action' means every fact, which it is necessary to establish to support a right or obtain a judgment. Viewed in that context, the following facts are required to be proved to successfully prosecute the drawer for an offence under [SECTION] of the Act.
(a) That the cheque was drawn for payment of an amount of money for discharge of a debt/liability and the cheque was dishonoured;
(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 [SECTION] 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 tbe 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 tbe period of 15 days as envisaged under [SECTION] [SECTION], 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] is to be reckoned accordingly. Tbe combined reading of the above two sections of the Act leaves no room for doubt that cause of action within the meaning of [SECTION] arises and can arise only once.
Besides the language of [SECTION] and [SECTION] which clearly postulates only one cause of action there are other formidable impediments 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]. 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 2nd 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.
9. The other impediment to the acceptance of the concept of successive causes of action is that it will make the period of limitation under [SECTION] 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 limitative clause by filing a complaint on the basis of a fresh presentation of the cheque and its dishonour. Since in the interpretation of statutes the Court always presumes that the Legislature inserted every part thereof for a purpose and the legislative intention is that the every part should have effect the above conclusion cannot be drawn for, that will make the provision for limiting the period of making the complaint nugatory.
10. Now, the question is how the apparently conflicting provisions of the Act, one enabling the payee to repeatedly present the cheque and the other giving him only one opportunity to file a complaint for its dishonour, and that too within one month from the date the cause of action arises, can be reconciled. Having given our anxious consideration to this question, we are of the opinion that the above two provisions can be harmonised, with the interpretation 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 pre-emptory action in exercise of his, such right under [SECTION], 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 [SECTION] 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. It is clear from the principles laid down by the Supreme Court as well as from the provisions contained in [SECTION] of the [ACT], that only one cause of action can be taken as the basis for filing the complaint under [SECTION] of the [ACT] for dishonour of cheques.
12. It has to be seen whether the 2nd complaint presented can be treated as the protest petition and whether the cause of action said to have been survived and whether the same can be deemed to have been presented within the period of limitation.
13. Before adverting to the same it is necessary to take into consideration the particulars of cheque and its presentation and dishonour. The cheque was dated 27.7.1994, and was said to have been presented on 29.7.1994 and was returned on 6.10.1994 and notice thereof was issued on 17.10.1994. It can be seen from the above particulars that the first complaint was presented to the Court in time.
14. For the offence under [SECTION] period of limitation has been mentioned in [SECTION]. What is stated in [SECTION] is that the complaint has to be presented within one month from the date on which the cause of action arises. The provisions of [SECTION], [ACT] make deviation from the provisions of [SECTION], [ACT] in respect of calculation of limitation. [SECTION] contemplates presentation of complaint into the Court in time whereas [SECTION], [ACT] mentions that the Court cannot take cognizance of the offence beyond the period of limitation and the said cognizance has to be taken within the period of limitation. It is clearly held by this Court that mere presentation of complaint is not sufficient compliance under [SECTION]. The cognizance has also to be taken by the Magistrate within the period of limitation. The method of calculating period of limitation varies in between [SECTION] of [ACT] and [SECTION] of [ACT].
15. The said provisions have been interpreted by the Madras High Court in [PRECEDENT]), which reads as follows :
"18. Much has been said in this behalf by [ENTITY]. J., that the filing of the complaint without the necessary papers like postal acknowledgement card, etc., would be a defective presentation in the eye of law. We do not agree. There is nothing in the Code to suggest that the complainant should produce all accompanying papers alongwith the complaint. A Magistrate would still take cognizance when he directs the complainant's statement to be recorded. It is misnomer that the Magistrate has to issue a summons when he takes cognizance or that he takes cognizance only if he issues the summons or refuses to do that. When the Magistrate applies his mind to the complaint and proceeds alongwith it in the manner provided by [SECTION] and onwards, the Magistrate has taken cognizance of the complaint. Issuing of process or dismissing the complaint under [SECTION] has got nothing to do with the taking cognizance, though taking cognizance is an essential step to be taken by the Magistrate before either issuing summons, postponing to issue summons or acting under [SECTION] in dismissing the complaint. The position in law in that behalf is completely settled. We, therefore, do not agree with [ENTITY], J., when the learned Judge suggests that the initial filing of the complaint without the necessary documents was defective filing and, therefore, amount to no filing. It must be taken that the complaint was filed when it was properly presented to the Court alongwith the proper Court-fee. The further technical defects have no concern with this filing and the Magistrate at that stage, cannot start pointing out those defects to the parties and, on that basis return the compiaint and the whole papers to the complainant or to his Counsel.
22 Turning now to the cases on hand, it is clear that the complaints in both the cases were filed in time, there is no disburse about the same. The Magistrate in both the cases have returned the papers to the complainants by making some endorsements thereupon. The learned Counsel Mr. [ENTITY] urged that those endorsements amounted to rejection of the complaints under [SECTION] of the [ACT] and, therefore, the complainants should have filed further proceedings, challenging those endorsements, treating them to be judicial order. In the first place, the said endorsements could not be termed to be judicial orders. They could at the most be termed to be administrative orders. Any judicial order could have been passed by the Magistrate, at that stage, only after examining the complainant and/or his witnesses. Without that, the Magistrate had no jurisdiction to pass any orders. Therefore, those order cannot be simply described as the judicial orders and consequently, the complainants cannot be held guilty for not challenging them in the proper Forum by way of a revision or appeal, as the case may be. Those orders would have to be deemed as non est orders. Even if they can be termed to be the judicial orders, they were completely without jurisdiction as we have already shown. Not only this, the Magistrate, fixing their own procedures, alsochose to return the complaints and again without fixing the date for representation of the complaints. If then the complainant chose his time to represent the complaint, could the complainant be blamed ? It is the cardinal principle of law that the act of Court should not prejudice any one "Actus curiae neminem gravabit". The Supreme Court has reiterated this principle in [PRECEDENT]. There the Supreme Court had refused to find fault with a party, who had made short payment by one rupee or which the Court was responsible. We would choose the same course by holding that once the complaints were filed within limitation, merely because the Magistrates, completely contrary to the procedure known to law, chose to return the same without fixing the date for re-presentation should not be held that the subsequent filing by the complaints would be held to be beyond limitation. We, therefore, answer the reference by holding that the date, which is to be taken into account, would be the date on which the complaints were initially presented. They being within limitation, the complaints would have to be held as validly filed and on that count, the accused cannot claim any benefit. We also hold that the act on the part of Court of taking cognizance of the complaints has no concern with the date of filing of the complaint on a proper reading of [SECTION]."
16. It is clear from the principles laid down by the Supreme Court as well as the Madras High Court that the limitation must be counted from the date of first complaint. The complaint is certainly within the period of limitation if the limitation is counted from the date of presentation of the 1st complaint. Hence I am of the considered view that as the 1 st complaint is presented within one month as contemplated under [SECTION] of [ACT] and it is in time. A strange procedure has been adopted by the Magistrate by forwarding this complaint to the police who in turn submitted the final report which is said to have been received on 3.11.1995. It is mentioned by the police that the case diary was eaten away by white ants and the complaint was lost. When a complaint is presented under [SECTION] before the Court this Court has lime and again, mentioned that the procedure to be followed is as mentioned under [SECTION] of [ACT]
17. It is stated in [PRECEDENT], as follows :
"As evidenced by [SECTION] of the [ACT] no Court shall take cognizance of any offence punishable under [SECTION] except upon a complaint in writing made by the payee or as the case may be, the holder in due course of the cheque. In the present case, the case was taken cognizance on a police complaint and consequently, as rightly submitted by the learned Counsel for the petitioner the complaint is not taken on file properly. In view of the provisions of [SECTION] of the [ACT], the proceedings in [CASE NUMBER] on the file of VI Metropolitan Magistrate quashed on and from referring the case by the learned Magistrate under [SECTION] of the Code and thereafter. The learned Magistrate shall proceed further with the case in accordance with the provisions of [SECTION] of the Code and dispose of the same in accordance with law."
18. It is also stated in [PRECEDENT], as follows :
"Under [SECTION] of the [ACT] no Court shall take cognizance of any offence punishable under [SECTION] except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque. That means, [SECTION] contemplates of filing of aprivate complaint only. This section does not give any indication to refer such a private complaint filed by the payee or the holder in due course to the police for investigation under [SECTION] of the [ACT] by the Magistrate before whom such a complaint is filed. In the case on hand the complaint filed by the petitioner was forwarded by the Magistrate to the police for investigation under [SECTION] of the [ACT] and after conducting investigation the police filed the charge-sheet and cognizance was taken by the Magistrate on the charge-sheet filed by the police it is a glaring defect in the procedure adopted by the Magistrate in identical circumstances, in [PRECEDENT], this Court held as follows :
'As evidenced by [SECTION] of the [ACT] no Court shall take cognizance of any offence punishable under [SECTION] except upon a complaint in writing made by the payee or as the case may be, the holder in due course of the cheque. In the present case, the case was taken cognizance on a police complaint and consequently, as rightly submitted by the learned Counsel for the petitioner, the complaint is not taken on file properly. In view of the provisions of [SECTION] of the [ACT], the proceedings in [CASE NUMBER] on the file of VI Metropolitan Magistrate quashed on and from referring the case by the learned Magistrate under [SECTION] of the Code and thereafter'."
19. Hence this Court has made it clear more than once in several decisions referred to supra that [SECTION] contemplates filing of a private complaint only. It does not give an indication to refer such a private complaint to the police for investigation under [SECTION] of [ACT]. It is also clearly stated that the investigation was completed by the police under [SECTION] and areport was also submitted. The Magistrate taking cognizance is a glaring defect in the procedure adopted.
20. In both the cases referred to, the procedure followed by the Court was that the matter was sent back to the lower Court and directed it to follow the private complaint procedure under [SECTION] of [ACT] The 1 st respondent has challenged the said procedure. One has to remember that he has invoked [SECTION], [ACT] alongwith [SECTION] of [ACT] instead of claiming his exclusive remedy under [SECTION] of [ACT].
21. A Full Bench of this Court reported in M/s. OPTS Marketing [PRECEDENT], held as under:
"Even after introduction of [SECTION] of the [ACT], prosecution under [SECTION], [ACT] is maintainable in case of dishonour of cheques or posted cheques issued towards payment of price of the goods purchased or hand loan taken, or in discharge of an antecedent debt or towards payment of goods supplied earlier, if the charge-sheet contains an allegation that the accused had dishonest intention not to pay even at the time of issuance of the cheque, and the act of issuing the cheque, which was dishonoured, caused damage to his mind, body or reputation, (ii) private complaint or FIR alleging offence under [SECTION], [ACT] for dishonour of cheques or post-dated cheques cannot be quashed under [SECTION], [ACT], if the averments in the complaint show that the accused had, with a dishonest intention and to cause damage to his mind, body or reputation. Issued the cheque, which was not honoured."
22. The 1st respondent was fully conscious when he presented the 2nd complaint and described it as a fresh complaint at paragraphs 7 and 8. I have already stated when the first complaint is presented in time, the 2nd complaint is not maintainable in the light of the provisions of [ACT]. Unfortunately the Magistrate forwarded the same to the police and thereby made mockery of things by not following [SECTION], [ACT] and the principles adumbrated in the decision.
23. Paragraphs 7 and 8 said to have been newly added in the 2nd complaint.
24. In that view of the matter it cannot be taken as a continuation of the first complaint. Moreover, it cannot be treated as protest petition, as it is mentioned as 2nd complaint in respect of [SECTION], [ACT]. The Magistrate failed to follow the correct procedure contemplated in forwarding the complaint to the police. When the averments mentioned in the complaint are taken into consideration aiongwith the ingredients of the offence under [SECTION], [ACT], they do not constitute any offence under [SECTION], [ACT] since it is not alleged in the complaint that the accused has an intention not to pay even at the time of issuance of cheque and the act of issuing cheque which is dishonoured caused damage to his mind, body or reputation. In the absence of the same the 2nd complaint for the offence under [SECTION] is liable to be quashed. Such allegations are also not found in the first complaint and hence it is also liable to be quashed.
25. It is a fit case where this Court has to exercise the inherent powers to set aside the proceedings that took place from the date of presentation of the first complaint till date and a direction has to be given to the lower Court to proceed with the first complaint under [SECTION], [ACT], by recording the sworn statement and to take a decision in regard to taking cognizance, etc.
26. In that view of the matter I find that the first complaint is presented in time and the 2nd complaint cannot be treated as a protest petition as it contains some more allegations and the averments made in the 2nd complaint as well as the first complaint do not constitute an offence under [SECTION], [ACT] as necessary ingredients are not found as adumbrated by the Full Bench decision.
27. I also find that the Magistrate has to be directed to proceed with the first complaint under [SECTION], [ACT], and strictly adhere to the procedure contemplated. The lower Court shall record the sworn statement after reconstruction of the said complaint as it has eaten away by white ants when forwarded to police.
28. It is also stated by the learned Counsel for the petitioner that the entire amount has been paid by the petitioner, which has been denied by the other side. The said question has to be decided by the Trial Court. The Magistrate is also directed to enquire whether the amount is paid by the petitioner or not. If the Magistrate finds that the amount has been paid, the matter may be rejected outright. The proceedings subsequent to filing of the complaint are quashed. The Magistrate shall proceed with the complaint by following the procedure mentioned under [SECTION], [ACT], while making in view of the principles laid down in the decisions reported supra and also the observations made by this Court supra. The petition is ordered accordingly.