Crl. Revision No. 1746 of 2001 -1- In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 1746 of 2001 Date of Decision: January 05, 2011 Naveen Kumar ---Petitioner versus State of Punjab and another ---Respondents Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Rajinder Goel and Mr. R.K.Bansal, Advocates for the petitioner Mr.V.K.Jindal, Addl. A.G.Punjab *** GURDEV SINGH, J. The petitioner-accused, Naveen Kumar, has preferred this revision against the judgment dated 3.11.2001 passed by Additional Sessions Judge, Sangrur, vide which his appeal preferred against the conviction and sentence recorded by Chief Judicial Magistrate, Sangrur, was dismissed. The complaint was filed against him by respondent No. 2 under Section 138 of the Negotiable Instruments Act, 1881(hereinafter referred to as “the Act”). It was contended therein that Naveen Kumar- Crl. Revision No. 1746 of 2001 -2- accused, is the proprietor of M/s Durga Rice Mills at Barnala and mills the paddy on contract basis. On 2.9.1994, an agreement was executed between them about the milling of the paddy under which 63245 bags were given to him, out of which he returned only 3330 bags and, as such, a sum of ` 1,65,72,067/- was outstanding against him. To discharge that liability, he issued four cheques bearing Nos. 515784 and 515783 dated 29.9.1995, 708020 dated 13.7.1995 and 708021 dated 18.7.1995 for ` 59, 29,500/- drawn on Punjab National Bank, in respect of his account bearing No. 3016/19. Those cheques were presented to that banker on 11.1.1996, but were dishonoured on account of insufficient funds in the account of the accused. After receipt of the return memo from the banker, notice dated 20.1.1996 was served upon the accused to make the payment of those cheques but he failed to do so. On the basis of the preliminary evidence produced by the complainant, the accused was summoned to stand his trial for the aforesaid offence. On his appearance before the Judicial Magistrate, notice of that offence was given to him to which he pleaded not guilty and claimed trial. The complainant examined Rajinder Prashad Garg, PW-1 and D.S.Mann, District Manager, PW-2, to prove the guilt of the accused. After the complainant closed his evidence, the accused was examined by the trial court and his statement was recorded under Section 313 Cr.P.C. The incriminating circumstances appearing in the evidence were put to him in order to enable him to explain the same. He denied those circumstances and pleaded that he had not issued any such cheque and the complaint has not been filed by a proper person and is barred by time. He was called upon to enter on his defence. He examined Jugal Kishore Garg, Advocate, DW-1 in his defence evidence. After going through that evidence and hearing Crl. Revision No. 1746 of 2001 -3- counsel for both the sides, Judicial Magistrate convicted the accused for the offence under Section 138 of the Act and sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of `. 10,000/- and in default thereof to undergo further imprisonment for a period of two months. The accused preferred an appeal against that conviction and sentence but the same was dismissed by Additional Sessions Judge, Sangrur, vide judgment dated 3.11.2001. I have heard learned counsel for both the sides. It has been submitted by learned counsel for the petitioner- accused that trust worthy evidence was produced before the trial court that notice dated 28.10.1995 (Ex. D-2) was served upon the accused, vide which he was called upon to make payment of the cheques in dispute. Once that notice had been served, the period of limitation is to be computed from that date as the cause of action for filing the complaint accrued after the expiry of the period mentioned in that notice. No doubt, the complainant proved on record the notice dated 11.1.1996, but fresh period of limitation is not to be computed from the date of that notice. According to him, there cannot be two causes of action regarding the same subject matter. He placed reliance on the judgments of the Apex Court reported in 1998(4)(Criminal) 90 (Sadanandan Bhadran v. Madhavan Sunil Kumar) and 2001(3) RCR (Criminal) 511 (M/s Uniplas India Ltd. vs. State(Govt. Of NCT of Delhi). He further submitted that no documentary evidence was produced by the complainant for proving that their was any pre-existing liability for the discharge of which the cheques were issued and as such no offence under Section 138 of the Act is made out. On the other hand, it has been submitted by State counsel that Crl. Revision No. 1746 of 2001 -4- correct findings were recorded by the trial court as well as by the Appellate Court that no evidence was produced on the record about the service of the notice dated 28.10.1995. Merely proving of that notice or copy thereof, is not the evidence of the fact that the same was actually sent by the complainant to the accused. That might be the manipulation of the accused himself. Only one notice was served which is dated 11.1.1996 and the complaint was filed well within the period of limitation. He also submitted that from the evidence so produced by the complainant, it stands proved that the amount mentioned in the complaint was due from the accused and it was in discharge of that liability that the cheques in question were issued. All the ingredients of Section 138 of the Act stand proved from the evidence produced by the complainant. There may not be any documentary evidence in proof of the fact that the amount mentioned in the complaint was due from the accused in respect of the non-supply of the rice after shelling of the paddy but sufficient oral evidence was produced by the complainant for proving that fact. That evidence cannot be appreciated while exercising revisional jurisdiction, which is limited one. Reference can be made to the statement of D.S.Mann, District Manager, PW-2, who categorically stated that the accused was supplied 63245 bags of paddy for milling and a sum of ` 1,65,72,067/- was outstanding against him and that the cheques in question were issued in discharge of that liability. The main question arises in the present revision petition is, whether notice dated 28.10.1995 was served upon the accused in respect of these very cheques. That fact was put to D.S.Mann, PW-2, during his cross examination and he admitted in so many words that legal notice dated Crl. Revision No. 1746 of 2001 -5- 28.10.1995 was issued to the accused in respect of these cheques. He even admitted the copy of that notice (Ex. D-1). For proving the original notice itself, the accused examined Jugal Kishore Garg, Advocate, DW-1 and he proved on record that notice as Ex. D-2. He stated that this notice was sent by him on the asking of the District Magistrate, Mansa (Sangrur). During his cross examination he stated that the postal receipt was taken from him by the officials of the department. That shows that this notice was sent through registered post. From the statement of this witness coupled with the admission made by D.S.Mann, PW-2, it firmly stands proved that notice dated 28.10.1995(Ex. D-2) was sent by the complainant to the accused. It was the copy of the notice Ex. D-1, which was put by the accused to the complainant and there was no occasion for the accused to be in possession of copy thereof if the same had not been sent to him by the complainant. The findings recorded to the contrary by the trial court and the First Appellate Court cannot be sustained, which are the result of complete misreading of the evidence and amounts to illegality. Can the period of limitation be extended by serving second legal notice? Obvious answer to this question is in the negative. Similar question came up for consideration before Hon'ble Supreme Court in Sadanandan Bhadran's case (supra) and it was held therein as under:- “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 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 Crl. Revision No. 1746 of 2001 -6- fifteen days of the receipt of the 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. It was further held therein as under:- “The other impediment to the acceptance of the concept of successive causes of action is that it will make the period of limitation under clause ( c) of Section 142 otiose, for, a payee who filed 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 disnohour. Since in the interpretation of Statutes the Court always presumes that the legislature inserted every part thereof for 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.” That very question again arose before Hon'ble Supreme Court Crl. Revision No. 1746 of 2001 -7- in M/s Uniplas India Ltd.'s case(supra). While relying upon the aforesaid judgment it was again held that if dishonour of a cheque has once snowballed into a cause of action it is not permissible for a payee to create another cause of action with the same cheque. Once the complainant served notice dated 28.10.1995, the cause of action accrued to him to file the complaint after the expiry of the statutory period. That period had already expired before the second notice dated 11.1.1996 was served upon the accused. The service of the second notice will not give rise to a fresh cause of action to file the complaint. The complaint was apparently barred by time. The findings recorded by the Trial Court and the First Appellate Court to the contrary cannot be sustained and are liable to be set aside. In the result, this revision petition is hereby accepted. Conviction and sentence of the accused is set aside. The fine, if already paid, be refunded to him. (GURDEV SINGH) JUDGE January 05, 2011 PARAMJIT