TaxTMI 
TaxTMI 
2022 (11) TMI 1068
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.... by a common order as they involve same questions of law in the 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....
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....and no payment was made by drawer, cause of action to file complaint arises in favour of payee. But if he did not file complaint fresh 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 o....
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....ght cases are tabulated here under:- Sr. No. Cheque/ Date Amount Return Memo Dated/ Remark Notice of Demand Second Notice of Demand Date of filing Complaint Date of Order passed by Trial Court 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 01.08.1....
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....insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that 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 provision of this Act, be punished with imprisonment for 8 [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, 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....
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....cts which the plaintiff must prove in order to entitle him to succeed in the suit. (See State of Madras v. C.P. Agencies AIR 1960 SC 1309; Rajasthan High Court Advocates Association v. U.O.I. & Ors. AIR 2001 SC 416 and Mohamed Khaleel Khan v. Mahaboob Ali Mia AIR 1949 PC 78). 19. Section 142 of the Negotiable Instruments Act is perhaps the only penal provision in a statute which uses the expression 'cause of action' in relation to the commission of an offence or the institution 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 e....
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....s contained in Section 138 of the Act, the following ingredients must be satisfied:- (a) Cheque must have been presented to the bank within a period of three months from the date on which it is drawn; (b) The cheque must have returned unpaid; (c) The payee or the holder in due course of the cheque must make a demand for payment of the cheque amount within 30 days of the receipt of the information from the bank regarding return of the cheque unpaid; (d) Such demand must be made by giving a notice in 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 1....
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....t the legal notice dated 31 December 2015 was served on him. The appellant has in the complaint specifically narrated the circumstance that despite repeated requests to the postal department, no acknowledgment of the notice was furnished. It was in these circumstances that the appellant issued a second notice dated 26 February 2016. Cognizant as we are of the requirement specified in proviso (b) to Section 138, that the notice must be issued within thirty days of the receipt of the memo of dishonour, we have proceeded on the basis that it is the first notice dated 31 December 2015 which constitutes 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 adeq....