JUDGMENT
Gitesh Ranjan Bhattacharjee, J.
1. A question of interpretation of Section 138 of the Negotiable Instruments Act, 1881, has been raised in this revisional application Petitioner No. 2 as director of petitioner No. 1-company issued the following four cheques towards the discharge of their liabilities against the opposite party complainant, viz.,
(1) Cheque No. 850816, dated May 15, 1992, for Rs. 14,356.
(2) Cheque No. 850817, dated June 10, 1992, for Rs. 2,746.
(3) Cheque No. 850818, dated June 10, 1992, for Rs. 8,000.
(4) Cheque No. 850819, dated July 10, 1992, for Rs. 11,740.
2. The total amount under those four cheques was Rs. 36,842. Those were, however, all post-dated cheques, The first three cheques were presented to the. bank on June 13, 1992, but they were returned unpaid by the drawee bank with the remark “funds insufficient”. The cheques were again presented to the bank on July 10, 1992, but, this time also they were dishonoured by the bank. On July 13, 1992, the complainant payee received a letter dated July 7, 1992, containing a request of the drawer of the cheques to hold the cheques for the time being. On July 14, 1992, the complainant payee issued a notice to the drawer of the cheques demanding payment of the said aggregate amount of the cheques, i.e., Rs. 36,842, and the said notice was duly received by the drawer of the cheques on July 16, 1992. On July 28, 1992, the drawer of the cheques forwarded a pay order for Rs. 5,000 only to the payee. The payee, however, filed a complaint under Sections 138 and 141 of the Negotiable Instruments Act before the learned Chief Metropolitan Magistrate, Calcutta, on August 12, 1992. On November 20, 1992, the complainant payee encashed the pay order for Rs. 5,000 earlier forwarded to him by the drawer of the cheques.
3. For appreciating the arguments made by the learned advocates for both sides in this case it is necessary first to go through the provisions of Sections 138 and 142 of the Negotiable Instruments Act, 1881, which are quoted below :
” 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 that 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.”
4. It has been the argument of the learned advocate for the petitioners that once a cheque has been presented to the bank within six months from the date on which the cheque is drawn or within the period of its validity, whichever is earlier, and is returned unpaid by the bank for any reason mentioned in Section 138, the offence punishable under the said section is complete and if the payee wants to prosecute the drawer of the cheque for such offence he will have to demand payment of the cheque amount 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 if he does not do, that he loses his right to prosecute the drawer of the cheque for the offence punishable under Section 138. It is submitted that once a cheque is presented and returned unpaid the payee cannot again present the cheque for the second time to the bank even if the period prescribed for presentation of such cheque has not yet expired so as to enable him to obtain a fresh period of limitation for making demand for payment which has to be made within fifteen days from the receipt of information regarding the return of cheque thereby circumventing the mandatory provision of Section 138(b) to his advantage.
5. In this connection, the learned advocate for the petitioner has attracted my attention to the decision of the Kerala High Court in N. C. Kumaresan v. Ameerappa [1992] 74 Comp Cas 848. In that case, the cheque was issued on November 4, 1989, in favour of the complainant and it was returned dishonoured by the drawee bank on November 6, 1989, with the remark “refer to the drawer”. Then notice was issued by the complainant and it was received by the drawer an November 23, 1989, but no payment was made pursuant to the said notice. Evidently, therefore, the cause of action referred to in Clause (c) of the proviso to Section 138 for filing a complaint under Section 142 arose on the failure of the drawer to make payment of the demand amount on the expiry of fifteen days from the date of receipt of the notice by the drawer which was November 23, 1989, and in view of Section 142(b) the complaint was required to be made within one month from the date on which the cause of action arose under Clause (c) of the proviso to Section 138. It appears that, in the said case, instead of filing the complaint within the period of one month from the date on which the cause of action arose the payee again presented the cheque to the drawee bank on January 15, 1990, when the cheque was again dishonoured. Thereafter, a fresh notice was issued to the drawer which was received on February 13, 1990, and as no payment was made by the drawer thereafter too the payee complainant filed the complaint under Section 142 on March 12, 1990. The Kerala High Court, in the said decision, held that from the scheme of the provisions in Chapter XVII of the Negotiable Instruments Act two features loomed large, the first being that more than one cause of action on the same cheque was not contemplated or envisaged and the second being that institution of prosecution could not be made after one month of the cause of action. It was observed, in the said decision, that if more than one cause of action on the same cheque could be created, its consequence would be that the same drawer of the cheque could be prosecuted and even convicted again and again on the strength of the same cheque, but the Legislature could not be imputed with the intention to subject a drawer of the cheque to repeated prosecutions and convictions on the strength of one cheque. The aforesaid decision of the Kerala High Court, if I may say so with respect, rightly lays down the law. There is no. doubt that once a cause of action has arisen under Clause (c) of the proviso to Section 138 for lodging a com: plaint under Section 142 of the Negotiable Instruments Act, 1881, in respect of any cheque, the payee will have to proceed on the basis of the cause of action so arisen if he wants to prosecute the drawer of the cheque and he has no option to create another cause of action subsequently for prosecuting the drawer of the cheque in respect of the self-same cheque on which the cause of action has already matured under Clause (c) of the proviso to Section 138. The said decision of the Kerala High Court, however, does not hold either directly or even derivatively that once a cheque has been presented to the bank and dishonoured, the payee, if he wants to proceed further, must proceed on the basis of such refusal or not at all and he cannot make a fresh tender of the cheque to the drawee bank even within the period mentioned in Clause (a) of the proviso to Section 138. In this connection, the following observation of the Division Bench of the Kerala High Court in S. Prithviraj Kukkillayya v. Mathew Koshy [1991] 71 Comp Cas 131 was quoted with approval in the decision of N. C. Kumare-san v. Ameerappa [1992] 74 Comp Cas 848 (at page 851) :
“Dishonour of cheque by itself does not give rise to a cause of action, because payment can be made on receipt of notice of demand contemplated in Clause (b) of Section 138 and in that event, there is no offence, nor any attempt to commit the offence, nor even a preparation to commit the offence. Failure to pay the amount within fifteen days of receipt of notice alone is the cause of action and nothing else.”
6. It is thus clear that the cause of action for prosecution does not arise by mere presentation of the cheque in bank and by its dishonour. Whenever any complaint is filed by any person under Section 142 of the Negotiable Instruments Act, 1881, it will have to be seen whether it has been filed within one month of the date on which the cause of action arose under Clause (c) of the proviso to Section 138.
7. Then again for testing as to when the cause of action arose it will have to be seen as to whether there has been a failure on the part of the drawer of the cheque to make, payment of the cheque amount within fifteen days of the receipt of the notice of demand for payment given by the payee under Clause (b) of the proviso to Section 138 which notice must have been preceded by receipt of information within fifteen days prior to the giving of such notice that the cheque had been dishonoured on presentation to the bank. Such presentation of the cheque to the bank, however, must have occurred within six months from the date of the cheque or within the period of its validity, whichever was earlier, irrespective of the question whether there was presentation of the cheque on any earlier occasion. The phraseology of the proviso to Section 138 in the form “provided that nothing contained in this section shall apply unless” certain eventualities enumerated thereafter would occur within the time demarcations and in the sequence mentioned therein, indicates that the tender and dishonour of cheque by the bank will be of no application and, therefore, of no consequence or impact in the matter of application of Section 138 where the same has not culminated in a cause of action under Clause (c) of the proviso. It is, therefore, evident that only such tender and dishonour of the cheque will be reckoned which has culminated into a cause of action under Clause (c) by following the course prescribed in Section 138. There is nothing in Section 138 or in the decision of the Kerala High Court in N. C. Kumaresan v. Ameerappa [1992] 74 Comp Cas 848 which can lend support to the argument of the learned advocate for the petitioner that Section 138 contemplates and prescribes presentation of the cheque to the bank on’ce only and not more than once. As regards presentation of the cheque in the bank for the purpose of prosecution under Section 142 the only limitation prescribed by Section 138 is that such presentation on which the complainant seeks to base the prosecution must have occurred within six months from the date on which the cheque was drawn or within the period of its validity, whichever was earlier. Presentation within time which following the multi-stage procedure of Section 138 has culminated into a cause of action for the complainant under Clause (c) of the proviso to Section 138 for prosecuting the drawer under Section 142 alone will be taken into consideration irrespective of the question whether there was any earlier abortive presentation of the cheque in the bank not culminating or ripening into a cause of action. But once the cause of action has arisen and matured under Clause (c) of the proviso to Section 138, obviously the complainant payee has to prosecute, if at all, on the basis of such cause of action within one month and he will not be free to create a fresh cause of action on the self-same cheque. In the present case, only one cause of action matured under Clause (c) of the proviso to Section 138 and the complainant started the prosecution on the basis of the same. There was no plurality of cause of action.
8. Relying upon certain judicial pronouncements and certain observations in Maxwell on the Interpretation of Statutes it had been submitted by the learned advocate for the petitioners that where two interpretations are possible in a penal law the more lenient one going in favour of the accused should be accepted and, therefore, it should be held in interpreting Section 138 of the Negotiable Instruments Act, 1881, that the said section contemplates presentation of the cheque only once in the bank and not more than once. On the other hand, the learned advocate for the opposite party has, relying on certain decisions, argued that the court cannot import or add new expressions to a provision of law enacted by the Legislature and, therefore, there is no scope of reading or importing the expression “once” in Clause (a) of the proviso to Section 138. Be that as it may, reading Section 138 in its entirety along with Clause (b) of Section 142 of the Negotiable Instruments Act, 1881. I, however, find no ambiguity in Section 138 and, therefore, there is no question of adopting or choosing any lenient interpretation of Section 138 in favour of the accused. The two sections, namely, Section 138 and Section 142, read together will make it perfectly clear without any ambiguity whatsoever that the payee can prosecute the drawer of the cheque on the basis of a presentation of the cheque in the bank which has culminated into a cause of action for him under Clause (c) of the proviso to Section 138 and any earlier abortive presentation of the cheque is to be kept out of consideration for the purpose of application of Section 138.
9. It has been next argued by the learned advocate for the petitioners that as the petitioner had made part-payment in response to the notice of the payee dated July 14, 1992, by a pay order dated July 28, 1992, for Rs. 5,000 the cause of action for the payee to lodge a complaint on the basis of the said notice was no more available to the payee. In this connection, the learned advocate for the petitioner also attracted my attention to the punishment prescribed for the offence in Section 138 and submitted that since the punishment may include fine which may extend to twice the amount of cheque, no complaint will be tenable on the basis of the cheque if any part payment has been made in respect of the amount mentioned in the cheque. It has been submitted that this is more so where after receiving the pay order the payee, as in this case, encashed the pay order towards part payment of the amount mentioned in the original cheque. It may be mentioned here that the pay order for Rs. 5,000 dated July 28, 1992, was received by the payee before the payee filed the petition of complaint in the court of the Chief Metropolitan Magistrate, Calcutta, on August 12, 1992, and he encashed the said pay order on November 28, 1992. I have given my anxious consideration to the contention raised by the learned advocate for the petitioner on this point and I am clearly of the opinion that any part payment will not affect the cause of action of the payee to file a complaint before the court under Section 138 read with Section 142. Clause (b) of the proviso to Section 138 requires that on dishonour of the cheque by the bank the payee shall make a demand for the payment of the “said amount of money” by giving a notice in writing to the drawer of the cheque which means that the notice shall make a demand for payment of the amount mentioned in the cheque. Clause (c) of the proviso refers clearly to failure of the drawer of such cheque to make payment of the “said amount of money” to the payee within fifteen days of the receipt of the said notice. The expression “the said amount of money” as used in both the Clauses (b) and (c) of the proviso to Section 138 makes it clear that the drawer will have to make payment of the entire amount of money pursuant to the notice given by the payee and failure to pay the entire amount of money as mentioned in the cheque and the notice will constitute an offence punishable under Section 138 and any part payment even if made, will be of no avail to the drawer of the cheque for evading prosecution. If part payment could protect the drawer of the cheque from prosecution under Section 138 this would have been a very handy and convenient device for an unscrupulous person to frustrate the very purpose of Section 138. In that case tender of any paltry and insignificant amount of say Rs. 10 or Rs. 5 even against a demand for any huge amount mentioned in the cheque could frustrate the coercive remedy which the Legislature has thought fit to make available under Section 138. to a duped payee coming within the ambit of the said section. Anything short of payment of the whole of the amount within the time limit mentioned in Clause (c) of the proviso to Section 138 generates the cause of action for making a complaint under Section 142(b).
10. It is immaterial whether the pay order which was issued towards part payment but not to cover the entire amount was encashed by the complainant after filing the complaint. Once the offence is complete any subsequent conduct either of the complainant or of the accused will not wash away the offence although in certain cases it may be permissible to compromise or compound the matter between the parties. In this connection, it may be mentioned that where a person commits theft or criminal misappropriation the subsequent restoration of the subject-matter of the theft or criminal misappropriation will not undo the offence which has already been committed although in fit and proper circumstances the High Court in view of the particular facts and circumstances of the case may in exercise of its inherent power under Section 482 of the Criminal Procedure Code, 1973, quash the proceeding or pass such other order as it may deem fit and proper in view of the subsequent development or the parties may even compromise or compound the offence where it is so permissible or the trial court in awarding punishment may take into consideration the subsequent development in mitigation of the severity of punishment. Therefore, the fact that any part payment has been made by the drawer of the cheque in the present case is of no consequence in deciding the question of maintainability of the prosecution irrespective of the question whether the same may or may not be a factor for consideration in awarding the punishment if the drawee of the cheque is convicted under Section 138. It needs no mention that the power to impose fine under Section 138 is quite a flexible one and the court on conviction of the drawer of the cheque may impose any amount of fine not exceeding twice the amount of the cheque or even may not impose any fine at all on passing a sentence of imprisonment alone. In view of the legal position noted above, I find no reason to interfere at this stage with the proceedings pending in the court below. It is needless to mention that any observation made in this order shall not be construed as any opinion of this court on the merits of the case pending in the court below. The revisional application stands dismissed.