G.S. Chahal, J.
1. The petitioners seek quashing of the complaint dated August 29, 1991, filed by the respondent against him for an offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act'), the summoning order issued by the court and all consequent proceedings.
2. The prosecution was launched by the respondent on the ground that the respondent had supplied to the petitioner shuttering plywood valued at Rs. 2,28,300 during the period August 3, 1989, to October 3, 1989, vide various bills. The petitioner paid Rs. 20,000 by way of a cheque dated November 17, 1989, but withheld the balance amount. Ultimately, on issuing two cheques in favour of the respondent and on presentation one of the cheques was honoured on June 15, 1991, but the second cheque amounting to Rs. 98,050 was dishonoured with the remarks 'refer to drawer'. On receipt of intimation of this memo of dishonour, the respondent issued a notice and the notice sent at the Delhi address was duly delivered while the other was received back unclaimed. This dishonoured cheque was again presented for encashment on July 31, 1991, but having been again dishonoured, a notice dated August 5, 1991, was issued calling upon the petitioner to pay the sum of Rs. 98,050 within fifteen days from the receipt of this notice, Since the petitioner did not make the payment, he was liable for the offence under Section 138 of the Act.
3. The petitioner has challenged the prosecution on the basis that the same was time-barred as it was not presented within one month of the accruing of the cause of action.
4. To appreciate the argument put forth the following provisions of law may be extracted :
'138. Dishonour of cheque for insufficiency, etc., of funds in the account--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 the 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 :
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, within fifteen 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 or other liability' means a legally enforceable debt or other liability.
142. Cognizance of offences.--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 writing, made by the payee or, as the case may be, the holder in due course of the cheque ;
(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 ;
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138.'
5. A bare reading of Section 138 of the Act indicates that to make out an offence under this provision, the following conditions must be satisfied ;
(i) The cheque must have been issued to discharge a liability ;
(ii} The cheque' must have been dishonoured for insufficiency of funds ;
(iii) Notice must be given by the payee to the drawer of the cheque giving intimation of the dishonour of the cheque and making of a demand of the amount within fifteen days of receipt of the intimation ; and
(iv) The drawer's failure to pay the amount of cheque within fifteen days of service of the notice.
6. So long as the period of notice does not expire there can be no cause of action with the payee to make the drawer liable criminally. The issuing of cheque, its dishonour, receipt of its due intimation do not make out an offence. The drawer can stall criminal prosecution by paying the amount of cheque. It is only failure to make the payment that gives a cause (Section 142(b) also speaks of cause of action arising under Clause (c) of the proviso to Section 158). Other facts are only a bundle of material facts which have also to be proved for establishing the charge.
7. Once a cause of action has arisen, the limitation will begin to run and it could not be stopped by presenting the cheque again so as to have a fresh cause of action and fresh limitation. The criminal prosecution has to be launched within one month of the expiry of the 15 day period from the issuance of notice as provided by Section 142(b) of the Act. For the dishonour of the disputed cheque the respondent may have the remedy under the civil law, but he could not launch the impugned prosecution, as the limitation had expired.
8. I hereby accept the petition and quash the complaint and all consequent proceedings. This petition stands disposed of.