THE HON'BLE SRI JUSTICE G.KRISHNA MOHAN REDDY CRIMINAL PETITION No.4928 of 2008 ORDER: 1 This Criminal petition is filed under Section 482 of Cr.P.C. seeking to quash proceedings in C.C.No.274 of 2007 on the file of the court of the Judicial Magistrate of I Class, Godvarikhani, Karimnagar District registered for offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short ‘the Act’). 2 For the sake of convenience, the parties hereinafter will be referred to as they are arrayed before the trial court. 3 The facts of the case, in brief, are that the accused borrowed an amount of Rs.40,000/- from the complainant towards loan on 31.10.2006 for meeting his business needs with a promise to repay the same with interest @ 2% p.m. within one month, that the accused issued a cheque bearing No.061725 dated 31.10.2006 drawn on Bank of India, NTPC, Jyothinagar Branch for the said amount and permitted the complainant to present the said cheque in bank after one month in discharge of the said loan amount, that the complainant presented the cheque on 28.02.2007 in his banker i.e. State Bank of Hyderabad, Jyothinagar, NTPC branch for the collection of the amount covered under the cheque, but on 06.03.2007 the cheque was returned unpaid with an endorsement “Funds insufficient”. Further, thereafter, the complainant got issued a legal notice dated 02.04.2007 to the accused through his counsel and as the accused did not pay the amount covered under the said cheque, the complainant, after complying with the mandatory provisions of Section 138 of the Act, filed the said complaint before the trial court. The learned Magistrate took cognisance of the said complaint as C.C.No.274 of 2007. Hence the accused filed the present petition under section 482 of Cr.P.C. seeking to quash the same. 4 Despite service, none appeared for the complainant. 5 Heard the learned counsel for the accused and the learned Additional Public Prosecutor. 6 The learned counsel for the accused has contended that after the cheque was dishonoured, the complainant, earlier, got issued a notice to the accused through his counsel in the month of December 2006, for which no reply was given by the accused but suppressing the said fact, the complainant again got issued a notice on 02.04.2007, which was served on the accused. The learned counsel has further contended that the complainant, having issued a notice first, cannot, again issue another notice since the cause of action for filing the complaint before the court would start from the date on which the earlier notice was issued and whereas in the present case, the complainant suppressing the said factum of issuance of the 1st notice in the month of December 2006, pleaded that the cause of action for filing the complainant started from 02.04.2007 on which date the second notice was issued. Further, the complaint filed by the complainant is not tenable and accordingly the proceedings are liable to be quashed. The first notice sent by the complainant is also filed before this court. In support of his contention, the learned counsel has relied on a decision of the apex Court in Sadanandan Bhadran Vs. Madhavan Sunil Kumar[1]. 7 Now the point for consideration is whether there are sufficient grounds to quash the proceedings impugned in this petition? 8 The complainant, having received notice sent by this court, surprisingly, has not chosen to appear before the court. Copies of both the notices are filed before the court. So, when no representation is made on behalf of the complainant in the matter, this court has no option but to accept the contention of the accused with regards to the issuance of both the notices. 9 Section 138 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 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 the amount 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. 10 Therefore, in view of the above noted provision of law, the complainant should have proceeded to file the complaint on the basis of the 1st notice served. When the fist notice, in fact, was served on the accused after it was issued in December 2006, it can be presumed that within a week or two weeks it would have been served upon the accused. So, it is manifest that the provisions of Section 138 of the Act were not complied with, with regard to the question of limitation to file the complaint. 11 Further, in an identical circumstance the apex court in Sadanandan Bhadran Vs. Madhavan Sunil Kumar relied at para No.10 of the said judgment held as under: “……..He may, therefore, without taking pre- emptory 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." 12 Therefore, from a reading of the said decision, it is clear that the complainant got right to present the cheque before the bank any number of times, but once a notice thereof was issued calling upon the accused to pay the amount covered under the dishonoured cheque and was served, the cause of action would start from that day only to file the complaint. Therefore, the complaint filed on the basis of the 2nd notice beyond the stipulated period is not maintainable. 13 For the aforesaid reasoning, this Criminal Petition is allowed and the proceedings in C.C.No.274 of 2007 on the file of the court of the Judicial Magistrate of I Class, Godvarikhani, Karimnagar District are hereby quashed. -------------------------------------------- G. KRISHNA MOHAN REDDY, J. 14.10.2011 Kvsn [1] AIR 1998 SC 3043