TaxTMI 
TaxTMI 
2022 (11) TMI 1068
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.... backdrop of similar facts and are directed against the same set of respondents. So much so the orders impugned in the petitions read the same. Facts are being culled out from CRM-M-14055-2013. 3. In these matters notice of motion was issued on 9th of July, 2013. After service of notice on the respondents following order was passed on 4th of November, 2014:- "It is reported by the office that notice issued to the respondents have been received back with the report of refusal. Post for hearing on 22.01.2015. Photo copy of this order be placed on the files of each connected cases." 4. As per the complainant it is a proprietorship concern dealing with fiber rolls/raisin sheets etc. Respondent used to purchase material from the petitioner on credit basis. In order to discharge liability respondent issued cheque No. 304763 dated 29th of February, 2012 for an amount of Rs. 1,56,634/- drawn on Bank of India. When presented, the said cheque was returned vide memo dated 26th of March, 2012 with the remarks, "exceeds arrangements". Petitioner claims that on instruction of the respondent the cheque was again presented by him. However, the same was again dishonoured vide memo dated 18t....
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....resh cause of action can not arise on every subsequent dishonored of cheque. Cause of action within in the meaning of Section 142(C) of Negotiable Instrument Act arises only once. The cause of action arose on 15.5.2012 the second legal notice can not be taken into consideration for filing of complaint. So in the present case second legal notice can not be considered and complaint is barred by first legal notice and no application for condonation of delay is filed. Hence the complaint is dismissed with no order as to cost. File be consigned to the record room after due compliance." 5. The impugned order was challenged by the complainant before the Revisional Court. The revision was also dismissed holding that:- "10. Learned Trial Court was right in coming to a conclusion that cause of action cannot arise on any repeat dishonor of the same cheque. Cause of action in terms of Section 142 (b) of the Acts arises only once. For ready reference, the said provision is appended as below: "(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 take....
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....urt Date of Order passed by Revisional Court 1 304308/ 07.02.12 97797 02.05.12 Payment Stopped 15.05.12 02.06.12 16.07.12 01.08.12 28.09.12 2 304145/ 24.04.12 91425 25.04.12 Payment Stopped 15.05.12 02.06.12 16.07.12 01.08.12 28.09.12 3 304114/ 13.04.12 91465 16.04.12 Exceeds Arrangement 15.05.12 02.06.12 16.07.12 01.08.12 28.09.12 4 304762/ 29.02.12 273825 02.05.12 Payment Stopped 15.05.12 02.06.12 16.07.12 01.08.12 28.09.12 5 303993/ 14.01.12 255619 02.05.12 Payment Stopped 15.05.12 02.06.12 16.07.12 01.08.12 28.09.12 6 304115/- 13.04.12 150187 16.04.12 Payment Stopped 15.05.12 02.06.12 16.07.12 01.08.12 28.09.12 7 304186/ 26.03.12 251392 02.05.12 Payment Stopped 15.05.12 02.06.12 16.07.12 01.08.12 28.09.12 8 304146/ 24.04.12 159363 25.04.12 Payment Stopped 15.05.12 02.06.12 16.07.12 01.08.12 28.09.12 7. Ld. Counsel for the petitioner submits that the Trial Court erred in dismissing the complaint. He submits that as per provision contained in Section 142 of the Act, the complaint is to be filed wit....
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....wice 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, 9 [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. Explanation.-For the purposes of this section, "debt of other liability" means a legally enforceable debt or other liability. 142. Cognizance of offences.- [(1)] 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 writ....
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....ution of a complaint for the prosecution of the offender. A careful reading of Sections 138 and 142, as noticed above, makes it abundantly clear that the cause of action to institute a complaint comprises the three different factual prerequisites for the institution of a complaint to which we have already referred in the earlier part of this order. None of these prerequisites is in itself sufficient to constitute a complete cause of action for an offence under Section 138. For instance if a cheque is not presented within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier, no cause of action would accrue to the holder of the cheque even when the remaining two requirements, namely service of a notice and failure of the drawer to make the payment of the cheque amount are established on facts. So also presentation of the cheque within the stipulated period without service of a notice in terms of Section 138 proviso (b) would give no cause of action to the holder to prosecute the drawer just as the failure of the drawer to make the payment demanded on the basis of a notice that does not satisfy the requirements of clause ....
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....n writing; and (e) The drawer of such cheque should have failed to make payment of the cheque amount to the payee/the holder in due course of the cheque within 15 days of the receipt of the said notice. For Court to take cognizance of offence punishable under Section 138 of the N.I. Act: (a) The complaint be made by the payee or the holder in due course of the cheque in writing; (b) Such complaint should be made within one month of the date on which the cause of action to file the said complaint arises; (c) The cause of action to file complaint arises after the drawer of the cheque fails to make the payment within 15 days despite having received the notice; and (d) After amendment made by Act 55 of 2002 w.e.f. 6th of February, 2003, the Court is entitled to take cognizance of the complaint even after prescribed period of one month from the date when the cause of action arose, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within the prescribed period. 14. Coming on to the facts of the present case, the complainant in his complaint filed under Section 138 pleaded that:- "6. The legal notice to this effect were served upon....
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....onstitutes the cause of action for the complaint under Section 138. 10. The complaint was instituted on 11 May 2016. Under Section 142(1), a complaint has to be instituted within one month of the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. The proviso however stipulates that cognizance of the 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. Both in paragraphs 7 and 8 of the complaint, the appellant indicated adequate and sufficient reasons for not being able to institute the complaint within the stipulated period. These have been adverted to above. The CJM condoned the delay on the cause which was shown by the appellant for the period commencing from 6 April 2018. However, if paragraphs 7 and 8 of the complaint are read together, it is evident that the appellant had indicated sufficient cause for seeking condonation of the delay in the institution of the complaint. The High Court has merely adverted to the presumption that the first notice would be deemed to have been served if it was dispatched in the ....