Judgment:
B. Akbak Basha Khadiri, J.
1. The petitioner is invoking the inherent jurisdiction of this court to quash the proceedings in C.C. No. 152 of 1998 on the file of the judicial Magistrate No. 5, Tirunelveli.
2. This petition has arisen in this way :
The petitioner herein borrowed monies from the respondent-complainant for the petitioner's family expenses and for his business purpose. He had agreed to repay the amount in three instalments by issuing three postdated cheques. The petitioner herein issued post-dated cheques on August 7, 1997, August 22, 1997, and October 5, 1997, respectively for a consideration of Rs. 1,00,000, Rs. 1,00,000 and Rs. 1,50,000. When the three cheques were presented in the bank for collection, they were returned with the endorsement 'funds insufficient'. The respondent-complainant issued statutory notice to the petitioner on October 25, 1997. After receipt of notice the petitioner represented to the respondent-complainant that he would make payment during the first week of February, 1998. Therefore, the respondent-complainant kept quiet. Thereafterwards, the respondent-complainant again presented the cheques for collection through the bank, but again the cheques were returned with the same reason of insufficient funds, on February 9, 1998. Within fifteen days from the receipt of the information dated February 9, 1998, the respondent-complainant issued registered notice to the petitioner on February 21, 1998, demanding payment, but no payment was forthcoming. The petitioner evaded to receive notice and the notice was returned to the respondent-complainant on March 10, 1998. Since no payment was made, the respondent-complainant instituted proceedings under Section 138 of the Negotiable Instruments Act against the petitioner before the Judicial Magistrate No. 5, Tirunelveli. The learned Judicial Magistrate took the complaint on file in C.C. No. 152 of 1998 and the matter is pending before the learned Judicial Magistrate.
3. The petitioner has come forward with the instant petition to quash the proceedings on the ground that the money was advanced for the business purpose for Nachiar Real Estate and in the absence of the company as a party, the complaint is vitiated. The next ground set forth by the petitioner is that the complaint is barred by limitation. According to him, the cause of action to institute criminal proceedings arose, as soon as the demand notice was issued and no payment was made and the second notice does not give rise to a cause of action.
4. Heard both the sides. Perused the complaint. The complaint recites that the petitioner herein borrowed monies for his family expenses and also for his real estate business. It appears, the petitioner is running a real estate business under the name and style of 'Nachiar Real Estate', but there is nothing to indicate that Nachiar Real Estate is a company or the amount was borrowed by Nachiar Real Estate. Therefore, the first ground raised by the petitioner falls to the ground.
5. The next ground is regarding limitation. The complaint is to the effect that the complainant presented the cheque in the bank several times. He had also conceded that he had issued a notice on October 25, 1997. Theessential requirements under Section 138 of the Negotiable Instruments Act are :
(1) The cheque should have been issued for the discharge in whole or part of any debt or other liability ;
(2) The cheque should have been presented within the period of six months or within the period of its validity whichever is earlier. It should have been returned by the bank. The cheque may be presented any number of times within its validity.
(3) The payee or the holder in due course should have issued a notice in writing to the drawer within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid.
(4) After the receipt of the said notice by the payee or the holder in due course the drawer should have failed to pay the cheque amount within fifteen days of the receipt of the said notice. Notice of dishonour is unnecessary when the party entitled to notice cannot after due search be found.
(5) On non-payment of the amount due on the dishonoured cheque within fifteen days of the receipt of the notice by the drawer, the complaint should have been filed within one month from the date of expiry of the grace time of fifteen days before a Metropolitan Magistrate or a Magistrate not below the rank of a Judicial Magistrate of the first class.
6. Now, the question is whether the respondent-complainant ought to have preferred the complaint within one month after expiry of the grace period of fifteen days after service of the first notice dated October 25, 1997, or whether he can issue a second notice and seek to take action within 45 days from the date of service of the second notice In Sadanandan Bhadran v. Madhavan Sunil Kumar : 1998CriLJ4066 , the Hon'ble Supreme Court have observed as under (headnote of AIR) :
'A cheque can be presented any number of times during the period of its validity by the payee. On each presentation of the cheque and its dishonour a fresh right--and not cause of action--accrues in his favour. He may, therefore, without taking preemptory action in exercise of his such right under Clause (b) of Section 138, 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 he gives a notice under Clause (b) of Section 138 he forfeits such right, for, in case of failure of the drawer to pay the money within the stipulated time, he would be liable for the offence and the cause of action for filing the complaint will arise. Needless to say, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of fifteen days from the date of the receipt of the notice by the drawer, expires.'
7. The Hon'ble Supreme Court have further observed as under :
'Consequent upon the failure of the drawer to pay the money within a period of fifteen days as envisaged under Clause (c) of the proviso toSection 138, the liability of the drawer for being prosecuted for the offence he has committed arises, and the period of one month for filing the complaint under Section 142 is to be reckoned accordingly. The combined reading of the above two sections of the Act leaves no room for doubt that the cause of action within the meaning of Section 142 arises and can arise only once.'
8. It therefore follows that the cause of action for institution of the complaint has arisen as early as October 25, 1997. The instant complaint is barred by limitation. The plea now taken by the petitioner is a legal plea which goes to the root of the matter and can be gone in to quash the proceedings. This Crl. O.P. is therefore allowed. The further proceedings in C.C. No. 152 of 1998 on the file of the Judicial Magistrate No. V, Tirunelveli, are quashed. Consequently, Crl. M.P. Nos. 10678 and 10679 of 1998 are closed as no orders are necessary.