IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD SATURDAY THE TWENTYNINETH DAY OF OCTOBER TWO THOUSAND AND ELEVEN PRESENT THE HONOURABLE SRI JUSTICE G.KRISHNAMOHAN REDDY CRIMINAL PETITION NO. 7454 OF 2008 Between: Jonnoju Srinivasa chary … Petitioners-Accused V/s. The State of Andhra Pradesh Represented by its Public Prosecutor High Court of A.P. Hyderabad & Anr. … Respondents-Complainant Counsel for the Petitioner : Sri K. Govind Counsel for the Respondent No.1 : Addl.Public Prosecutor Counsel for the Respondent No.2: None appeared The Court made the following : (Order follows next page). THE HONOURABLE SRI JUSTICE G.KRISHNAMOHAN REDDY CRIMINAL PETITION NO. 7454 OF 2008 O R D E R : This Criminal Petition is filed to quash CC.No. 564 of 2008 on the file of the Court of Judicial Magistrate of First Class, Mobile Court, Medak, registered for offence punishable under Section 138 of the N.I. Act on the basis of complaint filed by the second respondent-Complainant (For short, ‘the Complainant’). 2. The brief facts necessary for considering the criminal petition are as follows: The petitioner-accused (For short, ‘the Accused’) approached the complainant and requested that he was in need of money for performing the marriages of his children. The Complainant in good faith handed over Rs.5 lakhs as hand loan, thereby the accused promised to refund the said amount on demand and subsequently on demand the accused issued a post dated cheque bearing No. 142483 of Andhra Pradesh Grameena Vikas Bank, Manoharabad Branch for Rs.5 lakhs. On the presentation of cheque it was returned by the Bank with an endorsement “Insufficient funds”. Thereupon the Complainant issued notice on 10-05-2008 to comply with the requirement, for which the accused gave reply through his counsel on 23-05-2008, following which the Complainant presented the cheque again on 30-06-2008 before the same Bank but it was also returned with endorsement “Insufficient funds”. Again the Complainant issued another notice on 04-07-2008 which was replied on 11-07-2008. Thereby the accused committed the offence punishable under sections 138 and 142 of Negotiable Instruments Act. 3. The claim of the accused is that he never borrowed any amount nor issued cheque as alleged by the Complainant and thereby has not committed any offence under sections 138 and 142 of the Negotiable Instruments Act. 4. Heard the learned counsel for the accused and the learned Additional Public Prosecutor representing the State. 5. It is the contention of learned counsel for the accused that only the date of first reply given by the accused is to be taken into consideration for the purpose of computing the question of limitation and when the complaint was not filed within thirty days from the date of that reply the corresponding cause of action was lost placing reliance on a decision in SADANANDAN BHADRAN V/s. MADHAVAN SUNIL KUMAR [1] and also on a decision in PREM CHAND VIJAY KUMAR VS. YASHPAL SINGH AND ANOTHER[2]. The Honourable Supreme Court under similar circumstances exactly held as follows in the decision cited 1st supra : A cheque can be presented any number of times during the period of its validity by payee. On such presentation of the cheque and its dishonour a fresh right and not cause of action accrues in his favour. He may, therefore, without taking pre-emptory action in exercise of his such right under Cl.(b) of S. 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 Cl. (b) of S.138 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 from the day immediately following the day on which the period of fifteen days from the date of the receipt of the notice by the drawer, expires. Consequent upon the failure of the drawer to pay the money within the period of 15 days as envisaged under Cl. (c) of the proviso to S. 138, the liability of the drawer for being prosecuted for the offence he has committed arises, and the period of one month for filing the complaint under S.142 is to be reckoned accordingly. The combined reading of the above two sections of the Act leaves no room for doubt that cause of action within the meaning of S.142 arises and can arise only once. i) In the decision second cited supra, similar observation was made exactly under similar circumstances. 6. Therefore, it is to be seen whether any cause of action survived to file the complaint on the basis of second notice. 7. Section 138 of the Negotiable Instrument Acts reads as hereunder : 138. Dishonour of cheque for insufficiency, etc., of funds in the account – Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from the account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years} or with fine which may extend to twice the amount of the cheque, or with both. Provided that nothing contained in this section shall apply unless – (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, (within thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. 8. Section 142 of the Negotiable Instruments Act reads as hereunder: Cognizance of offences – Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) – (a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque. (b) Such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138. (Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period) (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under section 138. 9. Therefore, by virtue of these provisions read with the observations of the Supreme Court, the complaint should have been filed within thirty days from the date of first reply given by the accused at first on 23-5-2008 and the subsequent circumstances will not revive the cause of action. Therefore filing of the complaint on 04-08-2008 is barred by limitation. Consequently, the proceedings in CC.No.564 of 2008 on the file of the Court of Judicial Magistrate of First Class, Mobile Court, Medak are to be quashed. 10. In the result, the Criminal Petition is allowed. ___________________________________ JUSTICE G. KRISHNA MOHAN REDDY. 29-10-2011 I s L THE HONOURABLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL PETITION NO. 7454 OF 2008 CIRCULATION No. 32 Date:29-10-2011 Court Master: I s L Computer No. 43 [1] ) AIR 1998 SUPREME COURT 3043 (1) [2] (2005) 4 SCC 417.