wp374of10.sxw 1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE -CRIMINAL JURISDICTION CRIMINAL WRIT PETITION NO.374 OF 2010 Dilip Jayantilal Bhat .. Applicant -versus The State of Maharashtra and anr .. Respondents Mr. H.H. Ponda, for the Petitioner. M. S. N. Gawade, APP for the Respondent No.1 State. Shri Manjul S Shah in person for respondent. CORAM: J. H. BHATIA, J. DATED: 11th June,, 2010 P.C. 1. The petitioner has challenged the issuance of process under section 138 of the Negotiable Instrument Act, by the learned J.M.F.C. Vasai, in Criminal case NO.481 of 2009 filed by the complainant-respondent Manjul Shah. The complainant had in the complaint, contended that the accused-petitioner had issued a cheque No.384299 dated 3l.7.2008 for Rs.7,00,000/- against Bank of Baroda, Ville Parle Branch, in favour of the complainant in discharge of his legally enforceable liability. The said cheque was presented through State Bank of India on 19.1.2009, but the wp374of10.sxw 2 cheque was returned as dishonoured with remarks "balance insufficient". The said memo from the bank was received on 22.1.2009. Thereafter the complainant issued a notice dated 31.1.2009 making demand of the amount, pointing out that the cheque was dishonoured. Inspite of service of notice, the accused failed to make the payment. Hence complaint under section 138 of Negotiable Instrument Act. 2. Learned Magistrate issued process. The petitioner contended that prior to presentation of cheque on 19.1.2009, the complainant had presented the said cheque for encashment on 31.7.2008 as it was dishonoured. The complainant had issued notice on 21.8.2008 to the petitioner about the said cheque demanding amount. That notice was duly replied by the petitioner on 1.9.2008, denying the liability and he had also alleged that the cheque was forged. The learned counsel for the petitioner contended that even though the cheque may be repeatedly presented to the Bank for encashment, after the cheque is dishonoured but if the payee/complainant issues notice and still payment is not made, the only remedy is filing of complaint under section l42 of the Negotiable Instrument Act. Once the notice has been issued on the basis that the cheque was dishonoured, he cannot present cheque to the bank again. It is contended that the cause of action is available to the complainant when first notice is wp374of10.sxw 3 served and when the payment is not made within the stipulated period. Law requires that the complaint be made within one month after expiry of the stipulated period for payment. Therefore, it does not get fresh cause of action to file complaint by presenting cheque again and issuing notice again on the basis of the same cheque. 3. The learned counsel, finds support from the several authorities, beginning with Sadanan Bhadram -vs- Madhavan Sunil Kumar (1998 ALL MR (Cri) 1613), wherein Supreme Court considered legal position u/s 138 and 142 of of the Act . The Supreme Court observed thus, in para 8 & 10 of the judgment : “8. Besides the language of sections 138 and 142 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 th 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 wp374of10.sxw 4 of absolution of the drawer of an offence which stands already committed by him and which cannot be committed by him again”. “10. Now, the question is how the apparently conflicting provisions of the Act, one enabling 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 of cause of action arises can be reconciled. Having given our anxious consideration to this question, we are of the opinion that the above two provisions can be harmonised, with the interpretation that on each presentation of the cheque and its dishonour a fresh right and not cause of action accrues in his favour. He may, therefore, without taking peremptory action in exercise of his such right under clause (b) of section 138, 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 the section l38 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. Needless to say, the period of one month for filing the complaint will be reckoned on which the period of fifteen days from the date of the receipt of the notice by the drawer, expires.” 4. This authority was reiterated by the Supreme Court in Krishna Exports and ors -vs-Raju Das 2005 ALL MR wp374of10.sxw 5 (Criminal) 253l, (SC) and again in Tameshwar Vaishnav -vs Ramvishal Gupta 2010 All MR (Cri) 660. On the basis of authority of Hon’ble Supreme Court in Sadanand Bhadram (supra) case, this Court has also decided several cases and held that on the basis of subsequent dishonour and consequent notice without even bothering to refer to earlier presentation of the cheque, issuance of notice is not permissible and process issued against accused is liable to be quashed. 5. In the present case notice was issued on 21.8.2008, that notice was replied on l.9.2008 and on the basis of that he had not filed complaint. He admits that thereafter he presented cheque again on 19.1.2009 and then he filed complaint. The cause of action had arisen for him when the cheque was dishonoured for the first time and he had issued notice on 2l.8.2008 and when the petitioner had failed to make the payment. The complaint should have been filed within one month from the date on which the stipulated period for making payment had expired. When the period was over, the cheque was presented second time. In view of the legal position stated above, the complaint could not be filed by him on the basis of second notice. In view of this, the impugned order, issuing process under section 138 of the negotiable Instrument Act is liable to be quashed. 6. In view of the above, the petition is allowed and the wp374of10.sxw 6 impugned order is quashed and set aside. (J. H. BHATIA, J.)