ORDER
D.N. Prasad, J.
1. This application has been filed under Section 482 of the Code of Criminal Procedure (the Code) for quashing the order dated 7.2.2002 passed by the Sub-Divisional Judicial Magistrate, Jamshedpur, C/1 Case No. 829 of 2001 whereby the learned Magistrate took cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1881 (the Act) and also for quashing of all further criminal proceedings in the aforesaid case.
2. The case of the prosecution in brief is that opposite party No. 2/complainant filed a complaint case alleging, inter alia, that the petitioner and the complainant were well known and the petitioner had approached the complainant to give a sum of Rs. 40,000/- as he was in urgent need of money. On his request, the petitioner was paid Rs. 40,000/- and, accordingly, a cheque of Rs. 40,000/- bearing Cheque No. '481903' '226015005' of the Canara Bank, Hi-Tech. Agricultural Finance Branch, Lucknow dated 20.4.2001 was issued by the petitioner to the complainant. The complainant informed the accused/petitioner regarding the dishonouring of the cheque after some time. The complainant again presented the cheque but it was again dishonoured with a return memo dated 18.6.2001 issued by the Canara Bank with a note that the payment has been stopped by the drawer/accused-petitioner. The complainant issued a notice dated 29.6.2001 to which the petitioner demanded payment of Rs. 40,000/-but the petitioner did not pay the amount and thereafter the complainant filed the instant complaint case.
3. The complainant has been examined on solemn affirmation and one another witness has also supported the case and after finding prima facie case, the learned Magistrate took cognizance of the offence by the order impugned, hence this application.
4. Counter-affidavit has been filed on behalf of opposite party No. 2/complainant denying the contention of the petitioner/accused that the petitioner/accused was having sufficient credit balance in his account on 28.5.2001. It is alleged that the cheque issued by the petitioner was bounded because of no balance lying with the Bank to the credit of the petitioner, as a result of which, there was an endorsement of the Bank as 'stop payment'' issued on 18.6.2001. The Court below after finding prima facie case took cognizance of the offence rightly. It is also claimed that the cheque was dishonoured on 30.4.2001 to which the petitioner was intimated by the Advocate of the complainant through notice in writing on 8.5.2001 and second time the cheque was dishonoured on 28.5.2001 when the Bank return memo was issued on 18.6.2001 and thereafter again notice was issued on 29.6.2001, as required under Clause (b) of Section 138 of the Act and, as such, the petition is fit to be dismissed.
5. Mrs. Anubha Rawat Choudhary, learned Counsel appearing on behalf of the petitioner submitted that the learned Magistrate committed error in taking cognizance without applying his judicial mind and the complain ant has not mentioned about the first notice dated 8.5.2001 and, as such, the complainant knowingly suppressed the facts and, therefore, dishonour of cheque on each representation does n6t give rise to a fresh cause of action and, as such, this complaint petition is barred by limitation. The learned Counsel relied upon the case of Sadanandan Bhadran v. Madhavan Sunil Kumar, VII (1998) SLT 157=III (1999) CCR 238 (SC)=I (1999) BC 691 (SC)=(1998) 6 Supreme Court Cases 514.
6. On the other hand, the learned Counsel appearing on behalf of opposite party No. 2 contended before me that the Court below has rightly took cognizance in the matter as admittedly the petitioner/accused has issued a cheque of Rs. 40,000/- in connection with the debt and that cheque was dishonoured. It is further submitted that the complainant also informed the accused regarding dishonouring of the cheque and the accused had requested the complainant to present the cheque after some time and thereafter again the complainant to present the cheque after some time and thereafter again the complainant had presented the said cheque which was again dishonoured by an endorsement 'stop payment'. It is also submitted that the case of Sadanandan Bhadran (supra) was already considered by the Supreme Court in The case of Dalmia Cement (Bharat) Ltd. v. Galaxy Traders and Agencies Ltd. and Ors., I (2001) BC 684 (SC)=I (2001) CCR 159 (SC)=I (2001) SLT 613=AIR 2001 Supreme Court 676., in which it was held that to constitute an offence underSection 138 of the Act, the Complainant is obliged to prove its ingredients which include thereceipt of notice by the accused under Clause (b) of Section 138 of the Act. It is not the givingof notice which makes the offence but it is the receipt of the notice by the drawer which givesthe cause of action to the complainant to file the complaint within the statutory period andthe petitioner/accused admitted that the complainant had approached him and the petitionerhad requested not to present the cheque for some time indicating clearly that the petitioner/accused was informed about dishonouring of the cheque and on the request of the petitioner,again that cheque was presented which was dishonoured on 28.5.2001 and, therefore, thefiling of this complaint case within the statutory period from the second notice is not barredby limitation.
7. Perused the record. Obviously the petitioner/accused had issued a cheque for Rs. 40,000/- on 20.4.2001 which was presented to the Bank but it was dishonoured on 30.4.2001. It has specifically been mentioned in paragraph 4 of the complainant petition that the complainant had informed the accused regarding dishonouring of the cheque who requested the complainant to present the cheque after some time which goes to prove clearly that the complainant presented the cheque second time in the Bank because of the request made by the petitioner himself, the petitioner also claimed that he had not received the first notice dated 8.5.2001. The complainant as well as one witness was examined during inquiry under Section 202 of the Code and after finding prima facie case, the learned Magistrate took cognizance of the offence.
8. The supreme Court in the case of M/s. Dalmia Cement (supra) considered the decision of Sadanandan Bhadran (supra) and held that:
'Clause (a) of the proviso to Section 138 did not put any embargo upon the payee to successively present a dishonoured cheque during the period of its validity. On each presentation of the cheque and its dishonour a fresh right and not cause of action accrues. The payee or holder of the cheque may, therefore, without taking pre-emptory action in exercise of his right under Clause (b) of Section 138 of the Act, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. But once a notice under Clause (b) of Section 138 of the Act is 'received' by the drawer of the cheque, the payee or the holder of the cheque forfeits his right to again present the cheque as cause of action has accrued when there was failure to pay the amount within the prescribed period and the period of limitation starts to run which cannot be stopped on any account. This Court emphasised that needless to say the period of one month from filing the complaint will be reckoned from the date immediately falling the day on which the period of 15 days from the date of the receipt of the notice by the drawer expires.'
9. The petitioner/accused has denied about the receipt of the first notice dated 8.5.2001 issued by this opposite party No. 2 but at the same time the petitioner admitted that he was informed by opposite party No. 2 regarding dishonouring the cheque as stated at the first instance in paragraph 4 of the complaint petition. So all these matters relating to facts are for consideration before the Trial Court on the basis of the evidence collected. Admittedly the petitioner received a sum of Rs. 40,000/- and in lieu thereof, the cheque of Rs. 40,000/- was issued by the petitioner. In such circumstance, the Court has to presume that the dishonoured cheque was issued for debt and liability which can be rebutted by the accused/petitioner by leading evidence only. Burden of proving for non-existence of any debt or liability is on the accused which can be discharged at the trial. It appears that the cheque was dishonoured on account of drawer's 'stop payment' and the accused is to show that dishonoured was not due to insufficient of funds. Admittedly the petitioner did not make any payment so far. The Court below passed the order impugned after finding prima facie case which does not require for interference.
10. For the aforementioned reasons, I do not see any infirmity with the conclusion arrived at by the learned Magistrate requiring interference by this Court.
11. In the result, I do not find any merit in this application which is accordingly dismissed.