HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL PETITION No.8476 OF 2009 DATED.29-12-2011 ORDER: This Criminal Petition is filed by the Petitioner/Accused (For short, ‘The Accused’) under Section 482 of Cr.P.C. seeking to quash proceedings in Calender Case No.194 of 2009, pending on the file of the Court of Special Judicial Magistrate of First Class (Mobile Court), Nellore, registered for offences punishable under Section 138 Read with Section 142 of the Negotiable Instruments Act, 1881 (For short, ‘The Act’). 2. Whereas the petitioner is the accused, the first respondent is the complainant in the Calender Case. For the sake of convenience, I refer the parties as arrayed in the Calender Case. 3. The case of the complainant in brief is as follows : The accused approached the complainant to arrange money to purchase a new tractor. In that regard, the accused indebted some amount to the complainant. Towards the discharge of the debt amount, he got issued a cheque bearing No.0051313, dated 11-12-2006 for a sum of Rs.58,502/- drawn on Pinakini Grameena Bank, Vinjamur Branch, Nellore District. The complainant presented the cheque for collection at Nellore in Karnataka Bank Limited, Nellore, which was returned by his banker with an endorsement dated 14-03-2007 “Insufficient Funds” in the corresponding account of the accused. Immediately, the complainant got issued legal notice dated 22-03-2007 to the accused to repay the amount. The accused on receiving the said notice, approached the complainant and requested him to present it again, in the meanwhile he would arrange the funds. Later, the complainant presented the said cheque for collection, but the same was returned by his banker with an endorsement ‘Insufficient funds” in the account of the accused on 04-06-2007. Subsequently, the complainant got issued a legal notice dated 15-06-2007 to the accused but the accused having received the same failed to discharge the debt amount. Hence, the accused is liable to be punished for the alleged offence. 4. It is the contention of learned counsel for the accused that originally with reference to the debt being claimed by the complainant, a cheque drawn on Pinakini Grameena Bank, Vinjamur Branch said to be issued by the accused in the case was presented prior to 14-03- 2007 before Karnataka Bank Limited at Nellore for encashment and on 14-03-2007 the banker issued a memo to the effect that there was no corresponding account of the accused in Pinakini Grameena Bank, Vinjamur Branch, and thereafter the complainant issued legal notice on 22-03-2007 to comply with the requirement of paying the cheque amount which was served upon the accused on 23-03-2007 and on the reply of the accused again it was presented before Karnataka Bank Limited on 04-06-2007 for encashment and that Bank issued a memo to the effect that there was no account in the other bank and thereafter the complainant issued another notice on 15-06-2007 for which the accused sent reply by way of registered post with acknowledgement due and in fact as per law and precedents the cause of action arose on the date of service of first notice and within three months the complaint should have been filed but the complaint was filed much later on the basis of the reply given by the accused 03-07-2007 and therefore the case is barred by limitation. In support of his contention he has relied upon a decision of this Court reported in P. Janardhana Rao V. Sri VenkateswaraTransport, Chittoor, Rep. by its Partners and others[1], wherein it was held as follows at para No.9 of point No.2: 5. The point for consideration is whether there are grounds to quash the Calender Case as requested by the Accused? 6. In the decision cited supra, it is observed and held : “9. In Sadanandan Bhadran’s case {1998 (2) ALT (Crl.) 289}, the Apex Court made it clear that a cheque can be presented any number of times during the period of its validity by payee and the payee may, without taking pre- emptory action in exercise of his right under Clause (b) of Section 138 of the Act, 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 of the Act, 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. The Supreme Court made it clear that the combined reading of Sections 138 and 142 of the Act leaves no room for doubt that cause of action within the meaning of Section 142 of the Act arises and can arise only once. Following the said decision, the Apex Court once again held in M/s. Prem Chand Vijay Kumar’s case {2005 (2) ALT (Crl.) 286} that if the dishonour of the cheque has once snowballed into a cause of action, it is not permissible for the payee to create another cause of action with the same cheque and it was not in dispute in that case that there was issuance and receipt of lawyer’s notices on both the occasions and that the complaint was barred after receipt of the first lawyer’s notice. I n Maruthi College Engineering and Technology’s case {2006 (3) ALT (Crl.) 96 (A.P.} our High Court also followed Sadanandan Bhadran’s case and made it clear that once the payee gives a notice under Clause (b) of Section 138 of the Act, he forfeits his right to go on presenting the cheque so as to enable him to exercise such right under Section 138 of the Act and the learned Single Judge quashed the criminal proceedings under Section 138 of the Act on that ground. No authority contrary to the principle laid down in the above said binding precedents, has been brought to my notice and if so, the application of the principle to the admitted facts of this case, where there was presentation twice and lawyer’s notice twice, makes the complaint incompetent under Section 138 of the Act read with Section 142 thereof. The acquittal of both the accused by the trial Court on that ground does not appear to be susceptible to any interference”. 7. It is clear form this decision that by virtue of Section 138 of the N.I. Act, the demand should be made within 15 days from the date of service notice and one month after the service of notice the complaint should have been filed subject to the compliance of the requirements. 8. Even though the complainant was served with notice in this petition, he has not chosen to appear before this Court. 9. By virtue of sections 138 of the N.I. Act and by virtue of the decision cited supra, the cause of action to file the complaint would arise only from the date of service of the first notice and subsequent proceedings does not give rise to further cause of action to do so. Therefore, the Calender Case is barred by limitation as it was filed beyond the prescribed period of limitation. Hence, the Criminal Petition is allowed quashing the entire proceedings in Calender Case No.194 of 2009, pending on the file of the Court of Special Judicial Magistrate of First Class (Mobile Court), 236 Nellore. __________________________ G. KRISHNA MOHAN REDDY, J Dated:29-12-2011. Dsh. THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL PETITION No.8476 OF 2009 December, 29, 2011 DSH [1] 2007 (1) ALT (Crl.) 186 (A.P.)