TaxTMI 
TaxTMI 
2017 (12) TMI 393
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....2015 respectively were first dishonoured on 2/01/2016 by the bank. Against such dishonour first statutory notice was served on 15/01/2016 claiming the amount of dishonour of cheques. Admitedly after first dishonour and statutory notice no complaint was filed under section 138 of the Negotiable Instruments Act by the complainant. It was alleged in such objection that again the cheques were deposited in the bank in the month of February, 2016 which were dishonoured on 11/02/2016 and second notice for dishonor of the cheque was served on 18/02/2016 which was replied by the accused on 03/03/2016. Thereafter the complaint u/s 138 of Negotiable Instruments Act was filed on 11/03/2016 before the JMFC. It was therefore contended that since after presentation of the cheque for the first time in the month of January, 2016 and after dishonour thereof, since no complaint was preferred within stipulated statutory period i.e. after service of first notice, subsequent complaint on the basis of second dishonour and notice there off is not tenable as the complaint would be barred by time as the cause of action would accrue and start running after first dishonour and notice thereoff. 3. Said obje....
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....as filed on the basis of the first dishonour and the notice of default when the cause of action arose as per section 142(b) and 138(c) of Negotiable Instruments Act. However after first dishonour of cheque, in the month of January, 2016, during it's validity period cheque were again deposited subsequently in the month of February and dishonour of the cheques were informed by the bank on 11/02/2016 to the complainant. Thereafter, second legal notice was issued to the accused on 18/02/2016 which was served on the respondent/accused on 19/02/2016. The deposit of cheques dated 1/11/2016 and 2/11/2016 for the second time was made within the validity period of the cheques. As the facts would suggest even after such service of notice of demand no repayment was made within a period of 15 days as such complaint was filed on 11/03/2016. So the complaint was filed within one month of accrual of cause of action u/s 142(b) read alongwith section 138 (c) of the Negotiable Instruments Act, 1881. 9. For the sake of brevity section 138 and 142 of the Negotiable Instruments Act, 1881 are reproduced hereunder:- "138. Dishonour of cheque for insufficiency, etc., of funds in the account....
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....use of action" has to be understood to mean the bundle of facts and in case of section 142 of the Negotiable Instruments Act which is the only penal provision in a statute which uses the expression "cause of action". As against this "cause of action" is not defined anywhere in the Code of Civil Procedure. Therefore, while interpreting word "cause of action" under section 142 of the Negotiable Instruments Act in relation to the commission of an offence or the institution of a complaint, reading of section 138 and 142 of the Negotiable Instruments Act makes it abundantly clear that the cause of action to institute a complaint comprises the three different factual prerequisites. It was further held that right of the holder to present the cheque for encashment carries with it a corresponding obligation on the part of the drawer. The omission or the failure of the holder to institute prosecution does not, therefore, give any immunity to the drawer so long as the cheque is dishonoured within its validity period and the conditions precedent for prosecution in terms of the proviso to Section 138 are satisfied. It was further held that so long as the cheque is valid and so long as it is dis....
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....cheque is also permissible so long as the same satisfies the requirements stipulated in the proviso to Section 138 of the Negotiable Instruments Act. The reference is answered accordingly. The appeals shall now be listed before the regular Bench for hearing and disposal in light of the observations made above." 12. In the afore-said judgment, judgment of Prem Chand Vijay Kumar Vs. Yashpal Singh & another reported in 2005(4) SCC 417 was considered and was held as impliedly over ruled. This court while delivering the judgement in case of Babar Hussain Vs. Arjun Singh Netam reported in 2017(2) C.G.L.J. 413 has relied on a judgement of apex court which was over ruled on that date. 13. Consequently, this court after going through the judgment in case of MSR Leathers Vs. S. Palaniappan (supra) is of the view that judgment rendered in case of Babar Hussain Vs. Arjun Singh Netam reported in 2017(2) C.G.L.J. 413 by this court is per incuriam. Therefore, this court in the principles as has been held in case of Union of India and others Vs. R.P. Singh reported in (2014) 7 SCC 340 can ignore the same. 14. The Supreme Court has laid down the law that the judgements which are per incuri....