IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Miscellaneous No. M-44554 of 2007 Date of Decision: August 12, 2008 Mangat Ram .....PETITIONER(S) VERSUS Anju Aggarwal .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. Manish Kumar Singla, Advocate, for the petitioner. Mr. Parminder P. Sharma, Advocate, for the respondent. . . . AJAI LAMBA, J (Oral) This petition has been filed under Section 482 Cr.P.C. for quashing complaint No.13 dated 16.4.2005/ 19.4.2005 (Annexure P-1) titled ‘Anju Aggarwal vs. Mangat Ram’ and order of summoning dated 15.12.2005 (Annexure P-3) passed by the Sub Divisional Judicial Magistrate, Sunam. The undisputed facts are that the very cheque that is subject matter of the complaint filed for commission of offence under Sections 138 of the Negotiable Instruments Act, 1881 (for short, `the Act’) was dishonoured and notice dated 20.12.2004 was issued Crl. Misc. No. M-44554 of 2007 [2] as is required under Section 138(b) of the Act. Thereafter complaint was not filed. The cheque was presented by the respondent again. The cheque was again dishonoured and the present complaint has not only been filed but also entertained and the petitioner has been summoned to stand trial. In the complaint, the fact that the cheque was earlier dishonoured and notice was served, has also not been mentioned. Learned counsel for the petitioner has relied on M/s Prem Chand Vijay Kumar vs. Yash Pal Singh & Another, 2005(4) SCC 417 (Para 8 and 14). Reference has also been made to Krishna Exports vs. Raju Dass, 2006(2) RCR (Criminal) 672 (Para 3) and Sadanandan Bhadran vs. Madhavan Sunil Kumar, 1998(4) RCR (Criminal) 90 (Para 8). Learned counsel appearing for the respondent has not been able to dispute the facts as given out by the learned counsel for the petitioner. Learned counsel for the respondent, however, has pointed out that on oral request having been made, the cheque was again presented. I have considered the arguments addressed by the learned counsel for the parties. The issue has been considered in the following judgments. In M/s Prem Chand Vijay Kumar’s case (supra), the following has been held in Para 8 and 14:- “8. But once he gives a notice under clause (b) of Section 138, he forfeits such right in case of failure of the drawer to Crl. Misc. No. M-44554 of 2007 [3] pay the money within the stipulated time, he would be liable for offence and the cause of action for filing the complaint will arise. xx xx xx xx xx xx xx 14,. In Sil Import, USA v. Exim Aides Silk Exporters, Bangalore, 1999(2) RCR (Crl.) 658 (SC) : 1999(4) SCC 567, it was held that the language used in Section 142 admits of no doubt that the magistrate is forbidden from taking cognizance of the offence if the complaint was not filed within one month of the date on which the cause of action arose. Completion of the offence is the immediate forerunner of rising of the cause of action. In other words, cause of action would arise soon after completion of the offence and period of limitation for filing of the application starts simultaneously running” In Krishna Exports’ case (supra), the following has been held in Para 3:- “3. This judgment which has been followed in the subsequent decisions supports the appellant’s contention. Faced with this difficulty the learned counsel for the respondent submits that the first notice dated 15.2.1995 is really not a notice contemplated by clause (c) of the proviso to Section 138 and it cannot be construed to have given rise to a cause of action to file the complaint. According to the learned counsel for the respondent, the earlier notice was only in the nature of a communication which does not spell out in clear terms a demand to make the payment. We find it difficult to accept the contention. On a reading of the letter dated 15.2.1995, it is plainly clear that the respondent required immediate payment of the amount of cheque to be arranged failing which he threatened to take legal action in the matter. The said letter certainly qualifies itself as a notice within the contemplation of clause (c) of the proviso to Section 138. We are, therefore, of the view that the learned Magistrate should not have taken cognizance of the complaint after the expiry of the time limit prescribed by clause (b) of Section 142 of the Act. The proceedings taking cognizance and issuance of the process are, therefore, liable to be quashed.” In Sadanandan Bhadran’s case (supra), it has been held in Para 8:- “”8. Besides the language of Sections 138 and 142 which clearly postulates only one cause of action there are other formidable impediments which negates the concept of successive cause 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 Crl. Misc. No. M-44554 of 2007 [4] 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 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.” Provisions of Section 138(b) of the Act require the holder of the cheque to make a demand for the payment of the cheque amount within 30 days of receipt of information by him from bank regarding the return of the cheque as unpaid. This was done vide notice dated 20.12.2004. Under Section 138(c) of the Act, in case of non payment by drawer of cheque, complaint is required to be filed within 15 days of receipt of notice which however was not done by the respondent. Sections 138 to 142 of the Act, being complete Code, in relation to dishonour of cheque, the contention that orally a request was made, cannot be accepted. In view of the above, the petition is allowed. Complaint No.13 dated 16.4.2005/ 19.4.2005 (Annexure P-1) titled ‘Anju Aggarwal vs. Mangat Ram’ and order of summoning dated 15.12.2005 (Annexure P-3) passed by the Sub Divisional Judicial Magistrate, Sunam are hereby quashed. (AJAI LAMBA) August 11, 2008 JUDGE avin