M.P. Chinnappa, J.
1. The brief facts leading to this case are : the respondent filed a private complaint before the IX Addl. Chief Metropolitan Magistrate, Bangalore, alleging that the petitioner herein issued a post-dated cheque dated August 4, 1995, which came to be dishonoured on the ground that the drawer of the cheque had closed the account and that the petitioner being the drawer of the cheque has committed an offence punishable under section 138 of the Negotiable Instruments Act, 1881, and this complaint came to be filed after issuing statutory notice as contemplated under the Act.
2. The learned magistrate after taking cognizance of the offence directed to issue process to the petitioner. The petitioner filed an application before the same court to recall that order of taking cognizance of the offence. The learned magistrate considering the arguments of both the sides passed a detailed order rejecting the application of the petitioner. Hence, the petitioner questioned that order before the learned Sessions Court and the 23rd Addl. City Civil and Sessions Judge rejected the Rev.P. in Crl.R.P. No. 183 of 1996, dated December 13, 1996, and confirmed the order passed by the learned magistrate. As against that order the petitioner approached this court under section 482 of the Criminal Procedure Code, 1973.
3. Heard learned counsel for the petitioner who has raised four points in this case. They are :
(1) The learned magistrate failed to follow the principles of law enunciated by their Lordships of the Supreme Court in K. M. Mathew v. State of Kerala, : 1992CriLJ3779 . Thereby the magistrate flouted the law laid down by the Supreme Court.
(2) The endorsement of the bank was that the account was closed. Therefore, no offence was made out.
(3) Even otherwise notice was given to the respondent informing him that the account was closed and hence the complainant could not have re-presented the cheque to gain the second cause of action to file a complaint. On that ground, it is urged that the complaint was not in time.
(4) He also further submitted that there is a conflict of decisions on this question rendered by this High Court. Therefore, the case may be referred to a larger Bench for a decision.
4. Repelling this argument, learned counsel for the respondent submitted that the court below has considered the application of the petitioner on its merits and there is no flouting of the law laid down by the Supreme Court. She further contended that the complainant had re-presented the cheque at the request and due to the assurance of the petitioner that he had made arrangements for due payment of the amount payable under the cheque. Further there is no conflict of decisions rendered by this court and the question of referring the matter to a larger Bench does not arise.
5. Taking the first point into consideration it is abundantly clear that the learned magistrate has followed the Supreme Court judgment in K. M. Mathew v. State of Kerala, : 1992CriLJ3779 , wherein it is held that it is open to the accused to plead before the magistrate that the process against him ought not to have been issued. The magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint, that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the magistrate to drop the proceedings or rescind the process. The order issuing process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings, if the complaint on the very face of it does not disclose any offence against the accused.
6. From this judgment, it is clear that the magistrate is empowered to reconsider the order passed by him regarding taking cognizance and directing to issue process to the accused. If he is satisfied that there is no case made out nothing prevents him from recalling that order. In this case, from the impugned order, it is abundantly clear that the learned court has considered the case afresh and he has discussed the facts and the question of law in detail. After having come to the conclusion that there is no reason to recall this earlier order and that there are sufficient materials to proceed against the petitioner, he dismissed that application.
7. Therefore, at this stage it cannot be said that the magistrate had flouted the law enunciated by their Lordships of the Supreme Court. The very fact that he passed a detailed order, indicates that he followed the principles laid down by their Lordships and rejected the application only on the ground that it is not a case to recall the earlier orders passed by him. On the other hand he came to the conclusion that the facts of the case before their Lordships and the facts before him are different and even on reconsideration of the impugned order he was of the opinion that the case has to go for trial. Further, the learned Sessions Judge also confirmed the order. I do not find any merit in this contention. Therefore, the argument of learned counsel for the petitioner is accordingly rejected.
8. Learned counsel for the petitioner has drawn my attention to section 138 of the Negotiable Instruments Act, 1881, which reads :
'Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is 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 a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both'.
9. On the basis of it, learned counsel vehemently argued that the endorsement of the bank is 'account closed'. Therefore, the first requirement of law that 'account maintained by him with a banker for payment is not satisfied'. Therefore, on that ground itself the petition is liable to be allowed. He further emphasised the fact that the cause of action arises to the petitioner only if the amount of money standing to the credit of that account is insufficient to honour the cheque or it exceeds the amount to be paid from that account and not otherwise. According to him there was no account maintained by the petitioner as on the date of presentation of the cheques and the cheques were not returned because money was insufficient to honour the cheques or because they exceeded the amount arranged to be paid. Therefore, he submitted that the petition deserves to be allowed and in support of his argument he placed reliance on the decision of this court wherein it is held that a penal provision has to be construed strictly and not liberally. Thus a cheque dishonoured on the ground 'account closed' cannot be construed as dishonoured for 'insufficiency of funds' or 'exceeding arrangement' as laid down in section 138 of the Negotiable Instruments Act, 1881. He also placed reliance on a decision rendered in an unreported judgment passed by this court in Cr.P. No. 730 of 1991, dated February 13, 1992, wherein this court held that where the bank has not honoured the cheque for insufficiency of funds or it exceeds the amount paid from that account only if the bank dishonoured the cheque either for insufficiency of funds or it exceeds the amount arranged to be paid from that account, then only section 138 is attracted and not otherwise.
10. The same question arose before their Lordships of the Supreme Court in Electronics Trade and Technology Development Corporation Ltd. v. Indian Technologists and Engineering (Electronics) Pvt. Ltd. [1996] 86 Comp Cas 30 wherein it is held (page 33) :
'It would thus be clear that when a cheque is drawn by a person on an account maintained by him with the banker for payment of any amount of money to another person out of the amount for the discharge of the debt in full or in part or other liability is returned by the bank with the endorsement like.
1. In this case 'I refer to the drawer'.
2. 'Instructions for stoppage of payment'.
3. 'Sums exceed arrangement', it amounts to dishonour within the meaning of section 138 to the Act and issuance of notice by the payee or the holder in due course after dishonour, to the drawer demanding payment within 15 days from the date of receipt of such a notice, if he does not pay the same, the statutory presumption of dishonest intention subject to any other liability stands satisfied.'
11. From this decision, it is abundantly clear that it is not only the two grounds urged by the petitioner as has been held by our High Court in the decision referred to above, other endorsement of the bank dishonouring the cheque would also be available to the payee to proceed against the drawer, where dishonest intention can be presumed. Further, the decision of this court referred to above is deemed to have been overruled by the subsequent judgment of the apex court cited supra. Therefore, the contention of learned counsel for the petitioner that only on two grounds, the payee can proceed against the drawer, is liable to be rejected.
12. Coming to the third point, learned counsel vehemently argued that the respondent ought not to have re-presented the cheque in view of the fact that it was informed to the respondent that the account was closed in the bank not only by the bank but also by the petitioner himself. In his reply, learned counsel submitted that the respondent came to know that the cheque was dishonoured as the account was closed and that in the normal course it, was not open to the respondent to re-present the cheque. But the same was re-presented only because of the assurance held out by the petitioner. In support of this argument she has drawn my attention to para. 13 of the complaint wherein among other things it is alleged that the accused on the other hand approached the complainant and requested the complainant not to proceed with legal action against him and that he had now made arrangements to honour the cheques issued and thus requested the complainant to re-present the cheques for clearance. Accordingly, the complainant re-presented the said two cheques for clearance on its bankers on October 14, 1995, and the same were once again returned dishonoured by the accused's bankers with the endorsement 'account closed'. Learned counsel for the petitioner submitted that these allegations are totally false and the same were made to bring the complaint within time, etc. At this stage, this court cannot give any finding as these allegations are to be proved by the respondent at the time of trial. Hence, this question is left open.
13. Learned counsel for the petitioner further argued that once the cheque is dishonoured, it is not open to the payee to re-present the cheque and also after issuance of legal notice, as once the limitation starts running, it cannot be stopped. In support of his argument, he placed reliance on a decision rendered by a single judge in Crl.R.P. No. 146 of 1995, dated April 3, 1995, wherein this court has held that a payee cannot have a second cause of action on the same cheque once he had failed to institute a complaint on the strength of the first cause of action. However, this court in a judgment in G. Ekantappa v. State of Karnataka [1998] 93 Comp Cas 826 (infra), held that the re-presentation is permissible since it is for payee to decide whether to institute prosecution or not. Prosecution can be instituted on the basis of any one of the notices he had chosen to issue and not necessarily on the basis of notice issued on the first dishonour, and the time limit of one month prescribed under section 142(b) of the Act for making the complaint must be on the basis of the last notice issued under section 138(b) of the Act. In view of this, he submitted that there is a contradiction between the two decisions of the single judge, therefore, the matter may be referred to the Division Bench for laying down the law on the point.
14. However, learned counsel for the respondent submitted that the judgment rendered by the single judge in Crl.R.P. No. 146 of 1995, was based on the judgment which came to be passed after following the decision rendered by the Kerala High Court in K. Chellakkannu Nadar v. Chenkal M. R. Simon [1995] 84 Comp Cas 439; [1994] Crl. LJ 3515, which was overruled by the Full Bench of the Kerala High Court in S. K. D. Lakshmanan Fireworks Industries v. K. V. Sivarama Krishnan [1995] 84 Comp Cas 447; [1995] Crl. LJ 1384. The said judgment came to be rendered by the Full Bench on January 9, 1995, and the Crl. Revision Petition was allowed by this court on April 3, 1995. Therefore, it is clear that as on the date of the order passed by this court, the Division Bench judgment of the Kerala High Court was overruled. Therefore, as rightly pointed out by learned counsel for the respondent, this decision has become per incuriam.
15. The Hon'ble Supreme Court has observed in State of U.P. v. Synthetics and Chemicals Ltd. : 1993(41)ECC326 :
''Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'.'
16. It is also held that another exception to the rule of precedents is the rule of sub silentio. A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. Salmond on Jurisprudence, 12th edition, page 153, referred to :
'A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent.
Restraint in dissenting or overruling is for the sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law.'
17. This court though referred to the earlier decision of this court in Mallappa Sangappa Desai v. L. B. Whoti : ILR1994KAR2689 , wherein it was held that it is left to the payee to decide whether he would make use of the cause which arises when the cheque is returned with an endorsement of insufficiency of funds and initiate steps which may ultimately result in prosecution or to wait for some time to enable the drawer to arrange for sufficient funds and re-present the cheque again if the period of validity of the cheque is not over. However, it followed the Division Bench decision of the Kerala High Court which became per incuriam as stated above. Further this court also followed the judgment of Andhra Pradesh High Court in Syed Rasool and Sons v. Aildas and Co. [1993] 78 Comp Cas 738, 756; [1992] Crl. LJ 4048, wherein it is held :
'It is common knowledge that in commercial practice a cheque may be presented any number of times within the period of its validity .... There is no prohibition for presentation of the cheque any number of times within its validity period because the presentation may be in most of the times at the request of the drawer either in writing or orally but the right to present the cheque within the six months' period is not taken away as that right has already been given to the payee in whose favour the cheque has been given.'
18. However, it is held that the complaint can be filed only once. In this case, as stated earlier only once the complaint came to be filed but the cheque was re-presented for the second time. Therefore, it is clear that there is no bar as consistently held by this court, the Kerala High Court and also the Andhra Pradesh High Court. Under the circumstances, the contention of learned counsel for the petitioner that there is different opinion expressed by this court and, therefore, it has to be referred to a larger Bench is unsustainable.
19. The Supreme Court in State of Bihar v. Deokaran Nenshi, AIR 1973 SCC 908, pointed out the distinction between an offence which takes place when an act or omission is committed once and for all and a continuing offence. The complainant in whose favour a cheque has been issued has got a right to file a complaint only once on the said cheque. He can file a complaint within one month of the date of the cause of action. The cause of action is a bundle of facts. The party can take into account the final cause of action as the one to base his claim within the period of limitation and the final cause of action arises on account of dishonour alone. Therefore, the complainant can file a complaint for the offence under section 138 read with section 142 of the Act after the dishonouring of the cheque for the first time or he may choose to present the cheque at the request of the drawer within the said period of six months from the date of the cheque any number of times but the action to be taken by him while filing the complaint is only once and the period of limitation would be counted from the date of the last dishonour of the cheque. From the above discussion, it is abundantly clear that the complaint filed by the respondent is within time and also valid. Therefore, I have not been persuaded to accept the arguments advanced by learned counsel for the petitioner.
20. For the foregoing reasons, this petition has no merit and the same is dismissed.