IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. M.P.M No. 119 of 2009. Date of Decision: 24.4.2009. M/s Bansal Trading company …..Petitioner. Versus Minto General & Provisions Store ….Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, J.. Whether approved for reporting?1 For the Appellant: Mr. B.R. Kashyap, Advocate. For the Respondent: Nemo. Surinder Singh, J (Oral). The petitioner herein filed a complaint under Sections 138 and 142 of the Negotiable Instruments Act against the respondent, on the basis of two cheques of Rs. 4000/- each, which were allegedly issued by the respondent to discharge the debt liability. Both the cheques were dishonoured by the Bank with the remarks “exceeds arrangement”. This information was given by the concerned Bank to the complainant. Thereafter the complainant is alleged to have sent statutory notice Ext. CW-1/D dated 8.9.2004 by a registered post calling upon the respondent to make the payment. The postal 1 Whether Reporters of Local Papers may be allowed to see the judgment? - 2 - receipt is Ext. CW-1/E. Despite that the respondent did not make the payment of the cheques amount, thus filed the complaint before the learned trial court on 25.10.2004. After recording the preliminary evidence, respondent was summoned as an accused and the notice of accusation was put to him to which he denied. The complainant led his evidence to prove his case. The respondent did not adduce any evidence in defense. At the end of the trial, respondent was acquitted on the ground that when the cheques were dishonoured, the complainant’s power of attorney (PW-1) admitted having sent the notice on first dishonour, legal notice was sent but no case was filed. On second presentation of the cheques, both the cheques were again dishonoured and fresh notice was sent and the petitioner its basis filed the complaint. The trial court held that in such a situation no cause of action would arise on the presentation of cheques second time. The record of the learned trial court was requisitioned, perused and the matter was heard on the point of admission. On the perusal of the evidence on record, it appears that on behalf of the complainant, his special power of attorney Shri Raj Kumar had put in appearance as CW-1 and admitted that besides the second notice referred to above, earlier also - 3 - the said cheques were presented for encashment which were dishonoured and a notice was issued to the respondent which was received by him, but on the basis of the same no complaint was filed. As a matter of fact, the holder of cheque is free to present the cheque repeatedly within its validity period (six months herein) but once the notice has been issued and the payment is not received within the statutory period from the receipt of the notice, the payee has to avail very cause of action arising there upon and file the complaint. In Sadanandan Bhadran vs. Madhavan Sunil Kumar (1998) 6 SCC 514 the Supreme Court, inter alia, while dealing similar situation on a careful analysis and harmonizing provisions of both Sections 138 and 142 of the Act, interpreted that on each presentation of the cheque and its dishonour a fresh right- and no cause of action- accrues in his favour. The payee 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 offence and the cause - 4 - 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. In the instant case, earlier notice issued was served upon the respondent and admittedly the complainant did not file the complaint within the stipulated period therefore, no fresh cause of action would arise on the second presentation of the cheque by issuing the second notice. Thus, there is no error in the impugned judgment of acquittal, consequently leave to appeal is refused and the appeal stands dismissed. Send down the records. April 24, 2009. (Surinder Singh), (cm) Judge.