Arun Kumar Bajpai and Another vs State of U.P. and Others

B.K. Rathi, J.—This is a revision u/s 397/401, Cr. P.C. against the order dated 18.9.1999 passed by the Chief Judicial Magistrate, Mau in Complaint Case No. 3700 of 1998.

The facts giving rise to this revision are as follows:

The complaint was filed against the revisionists for offence u/s 138, N.I. Act alleging that the revisionists gave three cheques of Rs. 10,000 each of different dates, which were dishonoured and the amount was not paid inspite of the notice. The revisionists were summoned to stand trial. They moved an application before the Chief Judicial Magistrate, Mau, for recalling the summoning order and for discharge of the revisionists. That application has been rejected by the impugned order dated 18.9.1999 and non-bailable warrants have been issued against them. Aggrieved by it, the present revision has been preferred.

I have heard Sri S. N. Gupta, learned Counsel for the revisionists and the A.G.A. None appeared for opposite party Nos. 2 and 3 and that they could not be heard.

The complaint and evidence and statements recorded under Sections 200 and 202, Cr. P.C. show that the cheques were presented firstly on 10.7.1978, which were dishonoured for insufficient amount in the account and thereafter, the complainant gave a notice on 23.7.1978. The cheques were again presented on 10.10.1998 and they were again dishonoured and therefore, a fresh notice was given on 22.10.1998. No complaint was filed at the time when the cheques were dishonoured earlier and the notice was also given to pay the amount as required by the proviso (B) to Section 138, N.I. Act. Therefore, the cause of action arose on the service of earlier notice and the complaint could have been filed within one month of the service of the notice. The complainant could not create fresh cause of action by again presenting the cheques and issuing fresh notice.

In this connection the law laid down by the Apex Court in the case of Sadanandan Bhadran v. Madhavan Sunil Kumar (XXXVII) 1998 ACC 574 (SC), is very clear. It was held by the Hon''ble Supreme Court that successive presentation of cheque for payment is not barred by Section 138, N.I. Act. However, on each presentation and its dishonour, a fresh right arises, but when the notice served, the cause of action arises and the complaint can be filed within one month. Cause of action can only arise once on the service of the first notice.

In the present case no complaint was filed after service of the first notice, when cause of action arose. Therefore, the cause of action for filing the complaint does not survive. The complaint is, therefore, not maintainable. The learned C.J.M. has erred in rejecting the objection.

The revision is accordingly allowed and the order dated 21.1.1999 and 18.9.1999 passed by the C.J.M., Mau, in Complaint Case No. 3700 of 1998 is quashed and the revisionists are discharged.