IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application(C482) No.589 of 2006 Mani Ram S/o Ramharak R/o H.No. 293 Type-2 Sector-I B.H.E.L. Ranipur, Haridwar District Haridwar ………..…Petitioner Versus 1. State of Uttaranchal (Uttarakhand) 2. Nanhe Khan S/o Late Ramjan Ali R/o P-269 Pace-3 Shivalik Nagar B.H.E.L., Haridwar Distt. Haridwar ....……Opposite Parties Shri Piyush Garg, Advocate, present for the petitioner. Shri B.S. Parihar, Brief Holder, present for the State. None present for the complainant (after being served sufficiently). Hon’ble Prafulla C. Pant, J. By means of this petition moved under section 482 of Code of Criminal Procedure 1973 (for short Cr.P.C.), the petitioner has sought -2- quashing of the proceedings of criminal complaint case No. 24 of 2005, Nanhe Khan vs. Mani Ram , relating to offence punishable under section 138 of Negotiable Instruments Act, 1881, pending in the court of II Additional Civil Judge (Jr. Div.)/Judicial Magistrate, Haridwar. 2. Heard learned counsel for the petitioner and learned counsel for the State. None appeared on behalf of respondent no.2 even after sufficient service of notice. 3. Brief facts of the case are that the criminal complaint was filed by the respondent no.2 Nanhe Khan against the petitioner which was registered as criminal complaint case no. 24 of 2005, in which it is alleged that the petitioner Mani Ram took a loan of rupees one lac from the complainant to repay his loan taken from HDFC. The petitioner had agreed to repay the loan taken from the complainant which he failed to repay. On being requested again and again, the petitioner gave a cheque no. 735436 dated 25.08.2004, for an amount of Rs. 75,000/- towards repayment of the loan. -3- When the complainant presented said cheque with the bankers on 22.01.2005, the same was received back with the endorsement of “insufficient fund”. On this, complainant gave a notice dated 28.01.2005, to the petitioner and waited for within fifteen days, but the payment was not made to the petitioner. As such criminal complaint in question was filed on 17.02.2005, by the complainant. The trial court after recording statement of the complainant under section 200 Cr.P.C., and that of witness under section 202 Cr.P.C., appears to have summoned the accused vide its order dated 10.11.2005. Aggrieved by which this petition is filed. 4. Learned counsel for the petitioner drew attention of this Court to Annexure-5 to the petition which is copy of the notice dated 21.01.2005, served on the petitioner. In said notice it is admitted by the complainant that earlier also a notice dated 12.10.2004, was got served on the petitioner but he asked the complainant to present the cheque again on which the complainant presented cheque again in the month of January 2005, and once again cheque was dishonoured. On -4- its basis it is pleaded on behalf of the petitioner that after the complainant failed to file the criminal complaint after giving first notice dated 12.10.2004, he cannot maintain the complaint by giving a subsequent notice dated 28.01.2005. In support of his argument, on behalf of the petitioner, reference was made to the case of Sadanandan Bhadran vs. Madhavn Sunil Kumar 1998 (3)crimes page 217, and Prem Chand Vijay Kumar vs. Yashpal Singh and another, 2005 SCC (criminal) 1153. In both the aforesaid cases the Apex Court has held that a cheque can be presented by the buyer any number of times during its validity but cause of action arises to him to prosecute the drawer of the cheque only once. It is further held in the aforesaid two cases by the Apex Court that once notice under section 138 of Negotiable Instruments Act, 1881, is given to the drawer and the complainant failed to file the criminal complaint, he cannot be maintain a complaint by presenting the cheque again with the bankers and by serving the drawer with fresh notice. In para 8 of Sadanandan Bhadran case (supra) the Apex Court has observed as under:- “Besides the language of Section 138 and 142 -5- 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 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.” 5. In view of above principle of law, this Court is of the view that since complainant, in the present case, admittedly served notice on the petitioner earlier, and no payment was made and -6- still complainant did not to file the criminal complaint, it is not open for him to maintain the complaint subsequently in respect of fresh dishonour of the same cheque, by giving another notice. That being so, the summoning order passed by the trial court, in the present case appears to be erroneous in law and the criminal complaint in question in the above circumstances of the case, cannot be said to be maintainable. 6. Accordingly, the petition under section 482 of Cr.P.C., is allowed. Proceedings of the criminal complaint case no. 24 of 2005 Nanhe Khan vs. Mani Ram , relating to offence punishable under section 138 of Negotiable Instrument Act, 1881, pending in the court of II Additional Civil Judge (Jr. Div.)/Judicial Magistrate, Haridwar, are hereby quashed. (Prafulla C. Pant,J) Dt. 20.08.2010 Parul