IN THE HON’BLE HIGH COURT OF CHHATTISGARH AT BILASPUR Cr.M.P. N0. aw 2/003 PETITION UNDER SECTION 4 2 OF THE CODE OF CRIMINAL PROCEDURE ,[W A_ APPLICANT : Sukal Sai, Aged about 65 years, S/o. Meghnath Sai, R/o. Basna, District WWWK Mahasamund (CG) VERSUS Dinesh Agrawal, Aged about 40 COMPLAINANT years, S/o. Agarchand Agrawal, R/o. Basna, District Mahasamund (CG) ggz. 7M1§KTTA HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Cr.M.P. No. O4 of 2009 APPLICANT Sukal Sai VERSUS RESPONDENT Dinesh Agrawal Shri Vaibhav Goverdhan counsel for applicant. Shri Raghvendra Pradhan counsel for respondent. APPLICATION UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE. ' O R D E R (22.03.201 O) Instant petition has been preferred by the applicant against the order dated 12.11.2008 passed by Additional Sessions Judge, Mahasamund in Criminal Revision No. 59/2007 confirming the order dated 1219.200? passed by the Judicial Magistrate First Class, Saraipali in Criminal Case No. 1116/2004. 2. Facts of the case in brief are that a complaint case was filed by the respondent on 25.9.2004 under Section 138 of the Negotiable Instrument Act alleging that on 6.6.2004 a cheque of Rs. 1,30,000 was issued by the applicant which was presented before the Bank on 7.6.2004. On 11.6.2004 the Bank had informed the respondent/complainant that the applicant had closed his account and therefore the cheque could not be honoured. On 19.6.2004 the respondent/complainant had issued a notice to the applicant under " Section 138 (b) of the Negotiable instrument Act. Thereafter, in l stead of filing a complaint case as stipulated under Section 138 (b) ' of the Negotiable instrument Act, he issued a second notice on l 31.8.2004 to the applicant and then on 25.9.2004 he filed a l l complaint before the competent Court who had taken cognizance on the same vide order dated 4.10.2004. 3. lt appears from the record that cognizance on the complaint of I the respondent was taken on 4.10.2004 by the trial Court. Against l l .... ... ._Q__ the order dated 4.10.2004, the applicant preferred a revision before the Additional Sessions Judge, Mahasamund which came to be dismissed on the ground that as the applicant had not raised any objection before the learned Magistrate in respect of maintainability of the complaint case, revision is not maintainable. Pursuant to this order of the revisional Court, the applicant again approached the trial Court raising the preliminary objection in respect of maintainability of the complaint itself and praying for his discharge. Vide order dated 12.9.2007 learned Magistrate again dismissed the application of the applicant which was confirmed by the revisional Court by order impugned dated 12.1 1 .2008. 4. Counsel for the applicant submits that once the first notice was issued by the respondent on 19.6.2004, he ought to have filed the complaint latest by 3.8.2004 and there is no provision under the law for issuance of second notice as has been done in the present case.__He submits that while issuing second notice on 31.8.2004, no cognizance could have been taken by the learned Magistrate and the complaint ought to have been dismissed at the threshold. He placed reliance on the decision of the Supreme Court in the matter of Tameeshwar Vaishnav v. Ramvishal Gupta reported in 2010 AIR SCW 828 and submitted that this case is squarely covered with the said decision of the Supreme Court and therefore the complaint filed by the respondent deserves to be quashed. 5. s On the other hand supporting the order impugned counsel for the respondent submits that the second notice was issued by the respondent because after issuance of first notice the applicant had given an undertaking on 3.7.2004 that the amount would be paid to him by 23.8.2004 and the applicant had also informed him that his account was in operation. Thereafter, the respondent again presented the cheque after being assured by the applicant but this time also the cheque could not be honoured. He thus submits that the order impugned is in accordance with law and needs no interference in this petition. "3,; 6. Undisputedly the present complaint of which cognizance has been taken by learned Magistrate is based on second notice dated 31.8.2004 issued by the respondent. Almost in an identical factual situation it has been held by the Apex Court in the matter of Tameeshwar Vaishnav v. Ramvishal Gupta (supra) as under: “16. The provisionsof Section 138 and clauses (a), (b) and (c) to the proviso thereof indicate that a cheque has to be present 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. Clause (b) indicates that the payee or the holder in due course of the cheque, has to make demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid and clause (c) provides that if the drawer of the cheque fails to make the payment of the said amount of money to the payee or to the holder in due course of the cheque within 15 days of receipt of the said notice, the payee or the holder of the cheque may file a complaint under Section 142 of the Act in the manner prescribed.” “17. ln the instant case, it is clear that the first notices were received by the appellant on 14‘“ June, 2006, whereas the complaints were filed on 10‘“ July, 2006. lt must, therefore, be held that the complaints were filed beyond the period of limitation and the learned Magistrate erred in taking cognizance on the complaints filed on the basis of second notices issued on 7‘“ June, 2006. Similarly, the High Court was also wrong in affirming the order of the learned Magistrate." ’\. 7. Counsel for the respondent submits that second notice was issued by the respondent simply because the applicant had given an assurance after receiving the first notice and believing the applicant, respondent had again presented the cheque before the bank but unfortunately it was bounced and therefore there was an occasion for the respondent for issuance of second notice which is fully justined. 8. This Court finds itself unable to accept this contention of the‘ counsel for the respondent as in an identical case where oral‘ promise was made by the accused and after considering thosel F ....q__ contentions the Apex Caurt has laid down the law holding that such complaint is not tenable on the basis of second notice. 9. Thus considering the present factual scenario and the aforesaid legal position, the petition is allowed. Order dated 4.10.2004 whereby learned Magistrate had taken cognizance on th complaint of the respondent is hereby set aside. Consequently, Complaint Case No. 1116/2004 is hereby quashed. M” Pr‘itinkel‘ sdfi D‘waker Judge e