1 sIN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Application No. 3969 of 2007 In Criminal Appeal No. 361 of 2008 Sayajirao v. M/ Jai Ambe and anr -------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. Mr Rao, Advocate for applicant Mr P.S. Khubalkar, Adv for respondents Coram : A.P. Bhangale, J Dated : 13th August 2009 1. Heard learned counsel for the parties. Applicant (original complainant) is seeking leave to appeal against the judgment and order dated 14th August 2007 rendered by the JMFC and Special Judge (under Section 138 of the Negotiable Instruments Act), Nagpur whereby complaint of the applicant has been dismissed being time barred. 2. Learned counsel for the applicant contended that notice dated 7.2.2003 should not have been treated as valid notice and the complaint should have been dealt with on the basis of notice dated 27.2.2003. He relied upon decision of the Supreme Court in Rahul Builders v. Arihant Fertilizers and anr 2 reported in (2008) 2 SCC 321 in support of his contention that an omnibus notice without specifying as to what was the amount due under the dishonoured cheque would not subserve the requirement of law. In the said decision, the Apex Court concurred with the finding of the High Court that notice in question was vague and not serving the statutory requirements of provisos (b) and (c) of Section 138 of the Negotiable Instruments Act. 3. I have perused legal notice dated 7.2.2003 issued by the complainant to respondent no.1. It was issued through Advocate Ms S.K. Keole. After describing the transactions between the parties; facts relating to issuance of cheque, deposit thereof by complainant and bouncing thereof have been mentioned in detail and thereafter vide paragraph 6, respondent no.1 has been called upon to pay balance amount of Rs. 4,39,000/- in cash to complainant within 15 days. Respondent no.1 was warned that failure to comply with the demand made in the notice would entail initiation of necessary proceedings in the Court of Law. Notice dated 27.2.2003 is similar to the notice dated 7.2.2003. Complainant Sayajirao in his cross- examination has admitted issuance of legal notice dated 7.2.2003. Relevant portion of his cross-examination reads thus : “Accused issued the cheque Exh. 53 on 29/10/200. It was presented for encashment at the end of January-2002. It was returned unpaid after 10 to 12 3 days. A copy of notice now shown to me bears signature of my counsel. Contents therein are correct. It is at Exh. 71. It is true that notice Exh. 71 was sent on 07/02/2003. It is true that the cheque was again dishonoured on 11/02/2003. It is at Exh. 56. I can not tell whether a date of issuance of notice i.e. 28/02/2003 mentioned in para No. 10 of my complaint is correct or not.” 4. On perusal of the notice and reading the evidence of complainant, It is obvious that notice was not vague or omnibus and it is specific, categorical and precise making demand of the outstanding amount and cautioning respondents of consequences and peril. 5. Learned counsel for the respondents was right when he contended that cause of action would arise in such cases only once. I am fortified in my view by the judgment of the Supreme Court in Krishna Exports and ors v. Raju Das reported in (2006) 1 SCC (Cri) 350 wherein it is held that cause of action to file complaint on non-payment despite issue of notice arises but once and hence, where on failure of drawer of cheque to make payment within 15 days of receipt of the first notice the complaint was filed beyond the period of one month thereafter, the same was barred by limitation. 6. Notice (exhibit 71) was issued by complainant on 4 7.2.2003 and it was received by respondents on 10.2.2003. Thus, limitation to file complaint would start running from 26.2.2003 and the complainant should have filed complaint within one month, that is to say, on or before 26.3.2003. However, complaint was filed on 7.4.2003. Finding rendered by learned Magistrate that the complaint was barred by limitation is, therefore, just and proper. It does not suffer from any error of law or fact and needs no interference. Application seeking leave to file appeal is dismissed. Judge. Hsj