IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPEALLATE JURISDICTION CRIMINAL APPEAL NO.543 OF 1996 Prasen P. Naithani .. Appellant Versus Vinod S. Thakkar & Anr. .. Respondents Mr.S.V.Marwadi for the appellant. Mr.Girish Kulkarni for the respondent nos.1 and 2. Mr.G.S.Shinde, A.P.P for the State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 21st January 2009. : 21st January 2009. : 21st January 2009. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: . The submissions of the learned counsel appearing for the parties were heard yesterday. By this appeal against acquittal the appellant (original complainant) has taken an exception to the judgment and order dated 24th June 1996 by which the 1st and 2nd respondents herein were acquitted of the offence punishable under section 138 read with section 141 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the said Act). 2. The 1st respondent is the 1st accused and the 2nd respondent is the 8th accused. The case of the (2) appellant, is that the accused nos.1 to 7 were the Directors of the accused no.8 company. According to the appellant the accused no.8 (2nd respondent) had placed an order with the company of the appellant for supply of certain goods. According to the appellant the total price of the goods was Rs.07,50,000/-. According to the case of the appellant, towards the payment of the said amount, the 2nd respondent issued a cheque dated 14th June 1991 in the sum of Rs.06,88,520/- drawn in favour of the company of the appellant. The bankers of the appellant returned the said cheque alongwith memorandum dated 15th July 1991 in which it was stated that the cheque has been dishonoured for the reason "Funds expected. Present again". Accordingly, the said cheque was again presented by the appellant. Alongwith the memorandum dated 25th July 1991 the said cheque was returned with the remark "Funds insufficient". The appellant issued notice dated 05th August 1991 to the 2nd respondent calling upon the 2nd respondent to pay the amount covered by the cheque. The 2nd respondent replied to the said notice by its reply dated 23rd August 1991 addressed to the advocate for the appellant. In the said reply it was contended that the 2nd respondent was facing financial crisis and it was not (3) possible for the 2nd respondent to pay the entire amount within a period of 15 days from the receipt of the notice. However, the 2nd respondent assured the appellant to make endeavour to pay the amount on or before 20th September 1991. 3. Therefore, the appellant redeposited the said cheque which was returned dishonoured with the remark "Funds expected. Please present again". The cheque was returned alongwith memorandum dated 04th October 1991. On 10th October 1991 the appellant’s Solicitor issued a notice of demand to the accused calling upon the accused to pay the amount covered by the cheque. The said notice was replied to by the advocate for the 2nd respondent by reply dated 22nd October 1991 and declined to pay the amount. Therefore, the complaint was filed by the appellant on 01st November 1991. Process was issued on the said complaint on 10th January 1992. After the evidence was adduced by the appellant by examining the two witnesses, by the impugned judgment and order, the learned Magistrate acquitted the 1st and 2nd respondents. It must be noted here that the appellant did not prosecute the complaint as against the 2nd to 7th accused. The learned Magistrate dismissed (4) the complaint mainly on the ground that the complaint was premature in the sense that the complaint was filed by the appellant without waiting for a period of 15 days from the date of receipt of the demand notice. 4. The learned counsel appearing for the appellant has taken me through the complaint, notes of evidence, documents produced by the complainant and the impugned judgment and order. He invited my attention to sections 138 and 142 of the said Act. He submitted that a complaint complaining of offence under section 138 of the said Act can be validly filed before expiry of period of 15 days from the date of receipt of the notice of demand but cognizance thereof can be taken by the Court only after the expiry of period of 15 days from the date of receipt of the notice of demand. He submitted that the law on this point is well settled in the case of Narsingh Das Tapadia Vs. Goverdhan Das Partani and another (2000 AIR SCW 3268). He submitted that the acquittal of the 1st and 2nd respondents is only on the ground that the complaint was premature and all other issues have been held in favour of the appellant. He submitted that the view taken by the learned Judge that the complaint was premature could not (5) have been taken under any circumstances in view of the settled law. He, therefore, submitted that the order of acquittal is required to be overturned. 5. The learned counsel appearing for the 1st and 2nd respondents submitted that the complaint was not maintainable in as much as the cheque in question was earlier dishonoured and notice dated 05th August 1991 was issued by the appellant on the basis of the first dishonour. He submitted that on the basis of the said notice, the appellant did not file any complaint and the present complaint is based on second notice which was issued after dishonour of the cheque on its redeposit. He submitted that in view of this admitted position the 1st and 2nd respondents cannot be convicted. 6. The learned counsel appearing for the appellant by way of rejoinder submitted that the only ground on which order of acquittal is passed is that the complaint was premature and once it is shown that the view taken was impossible, the accused cannot be acquitted on a ground which is not held against the appellant by the trial Court. (6) 7. I have given careful consideration to the submissions. I have also perused the record. Going by the case of the appellant made out in the complaint as well as in the examination-in-chief, in July 1991 the cheque in question was returned dishonoured. On the basis of the said dishonour of the cheque, notice dated 05th August 1991 was issued by the solicitors of the appellant which was replied to by advocate for the 2nd respondent by reply dated 23rd August 1991. The cheque was redeposited and was dishonoured in October 1991 on the basis of which notice dated 10th October 1991 was issued by the solicitor of the appellant. Law on this aspect is no longer res integra. In the case of Sadanandan Bhadran Vs. Madhavan Sunil Kumar [(1998) 6 Supreme Court Cases 514], the Apex Court had an occasion to deal with the issue. The Apex Court dealt with the cause of action within the meaning of section 142 of the said Act. The Apex Court held that the cause of action within the meaning of section 142(c) arises only once. The Apex Court in paragraph 9 of the said decision proceeded to hold thus: "9. Now, the question is how the apparently conflicting provisions of the Act, on enabling (7) the payee to repeatedly present the cheque and the other giving him only one opportunity to file a complaint for its dishonour, and that too, within one month from the date the cause of action arises, can be reconciled. Having given our anxious consideration to this question, we we we are are are of the opinion that the above two provisions of the opinion that the above two provisions of the opinion that the above two provisions can can can be harmonised, with the interpretation that be harmonised, with the interpretation that be harmonised, with the interpretation that on on on each presentation of the cheque and its each presentation of the cheque and its each presentation of the cheque and its dishonour, dishonour, dishonour, a fresh right-and not cause of a fresh right-and not cause of a fresh right-and not cause of action-accrues action-accrues action-accrues in his favour. He may, in his favour. He may, in his favour. He may, therefore, therefore, therefore, without taking pre-emptory action in without taking pre-emptory action in without taking pre-emptory action in exercise exercise exercise of his such right under clause (b) of of his such right under clause (b) of of his such right under clause (b) of Section Section Section 138, go on presenting the cheque so as 138, go on presenting the cheque so as 138, go on presenting the cheque so as to to to enable him to exercise such right at any enable him to exercise such right at any enable him to exercise such right at any point point point of time during the validity of the cheque. of time during the validity of the cheque. of time during the validity of the cheque. But But But once he gives a notice under clause (b) of once he gives a notice under clause (b) of once he gives a notice under clause (b) of Section Section Section 138, he forfeits such right for in case 138, he forfeits such right for in case 138, he forfeits such right for in case of of of failure of the drawer to pay the money within failure of the drawer to pay the money within failure of the drawer to pay the money within the the the stipulated time, he would be liable for stipulated time, he would be liable for stipulated time, he would be liable for offence offence offence and the cause of action for filing the and the cause of action for filing the and the cause of action for filing the complaint complaint complaint will arise. will arise. will arise. Needless to say, the period of one month for filing the complaint will be reckoned from the day immediately (8) following the day on which the period of fifteen days from the date of the receipt of the notice by the drawer expires." (Emphasis supplied) The Apex Court also held that the cause of action for filing a complaint can arise only once. 8. Thereafter, the said view has been followed by the Apex Court. One such decision of the Apex Court is in the case of Prem Chand Vijay Kumar Vs. Yashpal Singh and Another [(2005) 4 Supreme Court Cases 417]. 9. On this aspect two submissions have been made by the learned counsel appearing for the appellant. The first submission is that the acquittal of the 1st and 2nd respondents is not on the said ground. The second submission is that by way of reply to the first notice the second respondent did not deny its liability but assured to pay the amount on or before 20th September 1991 and that is why the cheque was redeposited by the appellant. He also invited my attention to the paragraph 5 of reply dated 22nd October 1991 issued by the 2nd respondent to the second notice. He pointed out that the only contention raised in said paragraph 5 is (9) that the cheque was redeposited without obtaining the consent of the 2nd respondent. He submitted that the reply issued to the first notice by the 2nd respondent shows that the 2nd respondent had authorised the appellant to redeposit the cheque. 10. As far as scope of an appeal against acquittal is concerned, it is well settled that an appeal is available on facts as well as law. In an appeal against acquittal, the High Court has power to re-appreciate the entire evidence and to arrive at an appropriate finding of fact. As far as scope of interference is concerned, it is another matter. Unless there are compelling reasons normally an order of acquittal cannot be overturned and converted into an order of conviction. If there are two findings possible on the basis of evidence on record, the one in favour of the accused has to be accepted. Therefore, while hearing an appeal against acquittal, if the Appellate Court finds that there is an inherent lacuna in the prosecution case which goes to the root of the matter but the same has not been noticed by the learned trial Judge, an order of acquittal cannot be overturned on the ground that the only reason given by the learned Judge for acquittal is (10) erroneous. Therefore, there is no merit in the objection raised by the learned counsel appearing for the appellant that aforesaid inherent defect in the case of the appellant cannot be considered in appeal. As far as second submission on the said aspect is concerned, the view taken by the Apex Court is that the cause of action within the meaning of section 142(c) of the said Act arises only once. Reliance was placed on the reply sent by the 2nd accused to the first notice of demand. In particular, the reliance was placed on the last paragraph of reply dated 21st August 1991. All that is stated by the 2nd respondent in the said paragraph is that the 2nd respondent was unable to pay the amount within 15 days but the 2nd respondent would endeavour to pay the amount on or before 24th September 1991. The said reply does not state that the appellant was authorised to once again deposit the cheque. In fact in the reply there is a clear refusal to pay the amount within a period of 15 days as provided in clause (c) of section 138 of the said Act. Thus, the cause of action for filing the complaint as provided in clause (c) of section 138 read with clause (b) of section 142 of the said Act arose on the basis of the first notice. In fact by way of reply to the second notice, the 2nd (11) respondent has contended that the cheque was redeposited without its consent. Thus, in view of the mandate of law laid down by the Apex Court in the case of Sadanandan (supra), there was no option for the learned trial Judge but to acquit the 1st and 2nd respondents. 11. The submission of the learned counsel appearing for the appellant was that the ground on which the order of acquittal has been passed is erroneous in view of the decision of the Apex Court in Narsingh Das Tapadia (supra). However, this contention becomes academic as in any event the complaint filed by the appellant was liable to be dismissed on the aforesaid ground. Hence, it is not necessary to deal with the said issue. 12. In view of the aforesaid discussion, there is no merit in the appeal and the same is accordingly dismissed. The bail bonds, if any, of the 1st and 2nd respondents stand cancelled. (A.S.Oka,J)