Sir in my view the complaint will not fail as if you have sent two notices within stipulated period of one month after the endorsement of bank in the view the cause of action arise on expiry of the second notice 15 days period.

if second notice sent within one month of cheque dishonour and coplaint filed within one month of that notice then case is maintainable.what was the cheque date and notice and report on notice

No you donot have to file SLP you can file a recovery suit in worst circumstances if the complaint is quashed which in my view wont because the first notice return unversed and for demand second notice was sent. you can content before court that you sent notice on the correct address and the accused respondent has wilfully dodged the notices.,

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Narayan Chakraborty v. State of Jharkhand (Jharkhand)

2014(1) DCR 326 : 2014(1) NIJ 480 : 2013(19) R.C.R.(Criminal) 588

JHARKHAND HIGH COURT

Before:- Before :- Prashant Kumar, J.

W.P. (Cr.) No. 324 of 2011. D/d. 29.11.2013.

Narayan Chakraborty - Petitioner

Versus

State of Jharkhand & Anr. - Respondents

For the Petitioner :- Pratiush Lala, Advocate.

For the Respondent No. 1 :- S.K. Lalk, Advocate.

For the Respondent No. 2 :- Jai Prakash, A.A.G.

Negotiable Instruments Act, 1881 Section 138(b) Criminal Procedure Code, 1973 Section 482 Validity of notice issued on the basis of second dishonour of cheque - Held that, the prosecution under Section 138 of N.I. Act on the basis of second or successive dishonour of cheques is also permissible so long as the same satisfies the requirements stipulated in the proviso (b) to Section 138 - Petition for quashing the order taking cognizance dismissed.

[Para 4]

Cases Referred :

Gopal Mishra v. State of Jharkhand, 2010 (1)JLJR 152.

Msr Leathers v. S. Palaniappan, (2013) 1 SCC 177.

Sadanandan Bhadran v. Madhavan Sunil Kumar, (1998) 6 SCC 514.

JUDGMENT

Prashant Kumar, J. - This application has been filed for quashing the order dated 30.08.2011 passed by Sri K.K. Jha, learned Judicial Magistrate, Dhanbad in C.P. Case No. 1033 of 2011 whereby he took cognizance of the offence under section 138 of Negotiable Instrument Act. It appears that petitioner took friendly loan from complainant to the tune of L 1,50,000/-. It is alleged that the petitioner returned above loan to the complainant on 12.10.2010 by issuing a cheque bearing no. 246460 dated 30.11.2010. It is stated that the said cheque was deposited by the complainant in his account opened in Bank of India, Hirapur Branch, Dhanbad on 18.02.2011, but the same was dishonoured. Thereafter, complainant gave notice to the petitioner on 09.03.2011. It is stated that the petitioner requested the complainant to produce the cheque again in the bank for encashment. Thereafter, complainant again deposited the cheque in his account on 05.05.2011 for encashment, but again the same has been dishonoured. Thereafter, he again gave notice on 11.05.2011. It is stated that when the petitioner did not give any response to his notice dated 11.05.2011, the present complaint petition filed on 03.06.2011, within the time stipulated under section 142 of the Negotiable Instrument Act (hereinafter referred to as 'the Act'). It appears that, thereafter the court below considered the statement of complainant on S.A. and other papers produced by complainant and came to the conclusion that prima facie, offence under section 138 of the Act is made out. Accordingly, by the impugned order, he took cognizance of the offence as stated above.

2. It is submitted by Sri Pratiush Lala, learned counsel appearing for the petitioner that the petitioner ought to have filed the complaint petition within 30 days from the date of cause of action which arose after dishonour of cheque for the first time. It is submitted that the complainant, cannot be allowed to create a second cause of action by producing the cheque in the bank for the second time. In support of his contention, he relied upon a judgment of this Court in Gopal Mishra v. State of Jharkhand & Anr reported in 2010 (1)JLJR 152. Accordingly, he submits that the impugned order cannot be sustained.

3. On the other hand, Sri Jai Prakash, Additional A.G. appearing for the State submits that the aforesaid judgment of this Court in Gopal Mishra Case is based upon the judgment of the Hon'ble Supreme Court delivered in Sadanandan Bhadran v. Madhavan Sunil Kumar reported in (1998)6SCC 514. He submits that the aforesaid judgment and other subsequent judgment of the Hon'ble Supreme Court has been re-considered by a Three Judges Bench of Hon'ble Supreme Court in MSR LEATHERS v. S. PALANIAPPAN AND ANOTHER reported in (2013) 1 SCC 177 wherein the Hon'ble Supreme Court over ruled the Sadanandan case and held that the holder of a cheque can launch prosecution against the drawer of the cheque on the basis of 2nd and/or successive dishonour of the cheque. Accordingly, he submits that the judgment passed by this Court in Gopal Mishra case is no longer a good law. Learned A.A.G. Submits that in the instant case, it is an admitted position that the cheque was drawn on 30.11.2010 and the same was deposited for encashment for the second time on 5.5.2011 within six months from 30.11.2010. Under the said circumstances, if the cheque is dishonoured for the second time, then it is open for the complainant to file complaint against the petitioner. Accordingly, he submits that there is no illegality in the impugned order.

4. Having heard the submissions, I have gone through the record of the case. It is an admitted position that the cheque was drawn on 30.11.2010. It is also admitted that it was deposited in the bank for the second time on 5.5.2011 and the same was dishonoured on that date itself. Thereafter, a notice given to the petitioner on 11.5.2011 within time stipulated under section 138 Proviso (b) of the Act. It further appears that after the notice, complaint petition filed on 3rd June, 2011 within the time stipulated. Thus, now the only question arose whether the complainant can file complaint petition against the petitioner after dishonour of the cheque for the second time . It appears that in Gopal Mishra case, this Court after following the judgment of Hon'ble Supreme Court in Sadanandan Bhadran case (supra) has held that the complaint cannot be allowed to create a second cause of action to circumvent the law of limitation as stipulated in section 142 proviso of the Act But the Hon'ble Supreme Court in MSR LEATHERS case (supra) had re-considered the Sadanandan Bhadran case and its other judgments decided on the basis of Sadanandan Bhadran case and overruled the decision of Sadanandan Case and hold that the prosecution based upon second or successive dishonour of the cheque is also permissible so long as the same satisfies the requirements stipulated in the proviso to section 138 of the Act. In view of the aforesaid decision, now the decision of this Court in Gopal Mishra Case is no longer a good law. As noticed above, in the instant case, cheque was drawn on 30.11.2010 and for the second time, it was deposited for encahsment on 5.5.2011 within six months and it was dishonoured on that day itself. It further appears that the notice given to the petitioner on 11.5.2011 i.e. within time stipulated and thereafter complaint filed. In that view of the matter , I find that the present complaint petition satisfied all the requirements stipulated in proviso to section 138 of the Act.

5. Under the aforesaid facts and circumstances, I find no illegality in the impugned order. Accordingly, this writ application is dismissed.

.

Judgment for your case

Yes. Your case would be maintainable as you have duly served two legal notices.

Also, state as to what is mentioned on the letter as the reason for ineffective service to the defaulter?

Do I need to file SLP if my time has lapsed?

There is no need to file special leave petition in Supreme Court in this case.

You also have a option of filing a suit for recovery under order 37 of the code of civil procedure for recovery of your money.

Firslty, when you are sending the legal notice and it returned unserved then again you send the same meaning here by is that the person will always be in the impression that may be the other side now get it served upon them.

Secondly, your period will very well Ararat from the time of second notice you sent.

Thirdly, you may not need to file the SLP as if the delay is then you should file an application for the condonation of delay with the main case.

yes. ur case is maintainable as per Apex Court judgement.

if notice has been returned un served there is no proper service

Your complaint under section 138 NI would be dismissed

No need to file SLP

File summary suit under order XXXVII of code of Civil procedure to recover your money with interest

1. If the first notice had been sent to the correct address then there was no legal requirement to send another notice merely because the first notice was unserved.

2. The limitation period of 30 days to file the complaint case has to begin from the date on which the first notice is served or returned unserved.

3. SLP cannot be filed unless the High Court has ruled against you.

Yes your case will stand and any delay will be condoned by the court.

You have to file complaint under section 138 of Negotiable Instrument Act.

Can you let me know the date of the cheque.

Limitation will start from first legal notice but second notice sent on fresh bounce (2nd bounce) than complaint valid.

as per supreme court -

.....prosecution based upon second or successive dishonour of the cheque is also permissible so long as the same satisfies the requirements stipulated in the proviso to Section 138 of the Negotiable Instruments Act..

The second notice if issued subsequent to the cheque presented for the second time, then it is valid.

Other wise it may not be considered.

SLP is not maintainable if it is barred by limitation.