TaxTMI 
TaxTMI 
2017 (10) TMI 976
X X X X Extracts X X X X
X X X X Extracts X X X X
....ch was for an amount of Rs. 17,511/- (rupees seventeen thousand five hundred eleven) was issued by the petitioner in favour of the complainant Orissa Machinery & Sanitary on 20.12.2001 bearing no.233903 drawn on the Cuttack Central Co-operative Bank Ltd. at Kujanga Branch towards the cost of the purchased articles. The cheque was presented by the complainant in Syndicate Bank, Jagatsinghpur Branch on 12.06.2002 for collection of dues. The cheque was dishonored on 17.06.2002 by the Cuttack Central Cooperative Bank, Ltd. Kujang Branch on the ground of insufficient funds in the account of the petitioner. The Syndicate Bank, Jagatsinghpur accordingly intimated about such dishonour to the complainant on 20.06.2002. The complainant personally approached the petitioner on 04.07.2002 and served notice for payment of dues within the stipulated period of fifteen days. The petitioner requested the complainant for one month time for payment of the outstanding dues. On 26.10.2002 the complainant issued a legal notice to the petitioner by registered post with A.D. for payment of the dues within fifteen days from the date of receipt of the notice. On 04.12.2002 the complainant received back the l....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as the complaint petition was filed on 21.12.2002. It is further contended that after service of the first notice on the petitioner on 04.07.2002, there is no provision under the N.I. Act to serve a second notice by registered post on 26.10.2002 as was done in this case. The second notice dated 26.10.2002 is obviously much beyond the period of fifteen days as prescribed under clause (b) of the proviso to section 138 of the N.I. Act. It is further contended that the cause of action would arise on the basis of first valid notice, if the drawer of the cheque fails to make payment of the cheque amount to the payee or to the holder of the cheque as the case may be, within fifteen days of the receipt of the notice and not on the basis of second notice. Learned counsel for the petitioner placed reliance in case of Yogendra Pratap Singh -Vrs.- Savitri Pandey and another reported in (2014) 59 Orissa Criminal Reports (SC) 577 wherein it is held as follows:- "31. Section 138 of the NI Act comprises of the main provision which defines the ingredients of the offence and the punishment that would follow in the event of such an offence having been committed. Appended to this Section i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....onents are satisfied. ** ** ** ** ** ** ** ** 42. Section 142 of the NI Act prescribes the mode and so also the time within which a complaint for an offence under Section 138 of the NI Act can be filed. A complaint made under Section 138 by the payee or the holder in due course of the cheque has to be in writing and needs to be made within one month from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. The period of one month under Section 142(b) begins from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. However, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within the prescribed period of one month, a complaint may be taken by the Court after the prescribed period......." The complainant approached the petitioner on 04.07.2002 and personally served the notice on him within the statutory period of fifteen days after receipt of intimation from the Syndicate Bank, Jagatsinghpur regarding the dishonour of cheque on 20.06.2002. This is a valid notice as contemplated under clause (b) of the proviso to section 138. Since t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t refers to only one fact which will give rise to the cause of action and that is the failure to make the payment within 15 days from the date of the receipt of the notice. The reason behind giving such a restrictive meaning is not far to seek. Consequent upon the failure of the drawer to pay the money within the period of 15 days as envisaged under Clause (c) of the proviso to Section 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 Section 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 Section 142(c) arises and can arise only once. 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 the drawer immediately on his failure to make the payment within fifteen days of the receipt of the notice served in accordanc....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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. 11. For the foregoing discussion, this appeal stands dismissed as the appellant had earlier taken recourse to Clause (b) of Section 138 of the Act but did not avail of the cause of action that arose in his favour Under Section 142(b) of the Act." In case of S.L. Construction and Anr. -Vrs.- Alapati Srinivasa Rao and Anr. reported in (2009) 42 Orissa Criminal Reports (SC) 303, it is held as follows:- 32. As the issuance of cheque, non-payment thereof on presentation, issuance of a valid notice calling upon the drawer of the cheque to pay the amount in question and the appellants' failure to pay to the complainant the amount in question within a period of 15 days from the date of receipt of a copy of the said notice upon them, a cause of action arose for filing a complaint petition, in our opinion, the High Court cannot be said to have committed any error in passing the impugned judgment. 33.....