Paragraph numbers below are the court’s original numbering, recovered from the source text.
10. The submissions made on behalf of the Appellant were F vehemently opposed on behalf of the Respondent on the ground that having regard to the assurance given by the Appellant to the Respondent and the request made to present the cheque for the second time, even after issuance of the first notice, it must be held that the delay, if any, in filing the complaint had G been condoned by the learned Magistrate in keeping with the proviso to Section 142(b) of the Act.
11. Learned counsel submitted that the decisions cited on behalf of the Appellant had been subsequently considered by H this Court in S.L. Constructions vs. Alapati Srinivasa Rao TAMEESHWAR VAISHNAV v. RAMVISHAL GUPTA [ALTAMAS KABIR, J.] [(2009) 1 SCC 500], in which the decisions of this Court in Sadanandan Bhadran's case (supra) and Prem Chand Vijay Kumar's case (supra), had been noted and considered.
12. Learned counsel submitted that in view of the promise held out by the Appellant and his request to present the cheque for the second time, the Respondent had refrained from taking any action on the basis of the first notice which was the cause of the delay in making the complaint. Upon issuance of process, it must be held that the Court was satisfied that there was sufficient cause for making the complaint after the prescribed period.
13. Learned counsel urged that having regard to the above, no interference was called for with the order of the learned Magistrate taking cognizance or the order of the High Court affirming the said order. o
14. We have given our anxious thought to the submissions made on behalf of the respective parties, having regard to the apparently different views expressed in Sadanandan Bhadran's case (supra), Prem Chand Vijay Kumar's case (supra) and the latest decision in S.L. Construction's case (supra).
15. On careful scrutiny of the decision in S.L. . Construction's case (supra), it would appear that the facts on the basis of which the said decision was rendered, were different from a case of mere presentation and dishonour of the cheque after issuance of notice under the proviso to Section 138 of the Act. While the decision in Sadanandan Bhadran's case (supra), clearly spells out that a cheque may be presented several times within the period of its validity, the cause of action for a complaint under Section 138 of the Act arises but once, with the issuance of notice after dishonour of the cheque and the receipt thereof by the dr~wer. The same view has been reiterated in Prem Chand Vijay Kumar's case (supra). The only distinguishing feature of the decision in S.L. Construction's case (supra) is that of the three notices issued, the first two A never reached the addressee. It is only after the third notice was received that the cause of action arose for filing the complaint. In ~ffect, the cause of action for filing the complaint in the said case did not arise with the ir.suance of the first two notices since the same were never received by the addressee.
16. The provisions of Section 138 and clauses (a), (b) and (c) to the proviso thereof indicate that a cheque has to be 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. Clause (b) indicates that the payee or the C holder in due course of the cheque, has to make demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid and clause (c) provides that if the drawer of D the cheque fails to make the payment of the said amount of money to the payee or to the holder in due course of the cheque within 15 days of receipt of the said notice, the payee or the holder of the cheque may file a complaint under Section 142 of the Act in the manner prescribed.
17. In the instant case, it is clear that the first notices were received by the Appellant on 14th June, 2006, whereas the complaints were filed on 10th July, 2006. It must, therefore, be held that the complaints were filed beyond the period of limitation and the learned Magistrate erred in taking cognizance F on the complaints filed on the basis of the second notices issued on 7th June, 2006. Similarly, the High Court was also wrong in affirming the order of the learned Magistrate.
18. The Appeals must, therefore, succeed and are, G accordingly, allowed. The orders of the learned Magistrate dated 13th July, 2006 and 17th July, 2006, respectively, taking cognizance on the Criminal Complaint Nos.339 and 399 of 2006 along with the orders of the High Court impugned in these appeals, are set aside. H K.K.T. Appeals allowed.