JUDGMENT
S.S. Saron, J.
1. This order will dispose of Criminal Misc. Nos. 546-M of 1993 and 547-M of 1993 as identical questions of law are involved in the two petitions filed by petitioner Surinder Kumar. The facts are, however, being taken from the case Criminal Misc. No. 546-M of 1993.
2. The prayer of the petitioner Surinder Kumar who is the accused in the case is for quashing the complaint instituted on 17.12.1991 (Annexure P-1), by respondent No. 2 under Section 138 of the Negotiable Instruments Act, 1881 (Act, for short) and Section 420 of the Indian Penal Code (IPC, for short) pending in the Court of learned Chief Judicial Magistrate, Panipat titled Roop Narain Mukhija v. Surinder Kumar. The complainant-respondent No. 2 had alleged that the accused-petitioner is the sole proprietor of M/s. Bharat Beej Bhandar, Panipat and is dealing in the sale and purchase of vegetable seeds. The petitioner purchased 100 bags of carrot seeds from the complainant amounting to Rs. 81,300/-. For the aforesaid sum, the petitioner issued two cheques on 18.8.1991, one for a sum of Rs. 40,000/- and the other for Rs. 41,300/- respectively in favour of the complainant. The complainant-respondent presented both the cheques in his Bank on the same day i.e. 18.8.1991 which were forwarded to the Bankers of the petitioner i.e. United Bank of India for collection. However, these cheques were returned with the remarks: “insufficiency of funds” in the account of the petitioner. The accused then requested the complainant that the cheques may be presented again after three months. The cheques were again presented but were dishonoured on account of “insufficiency of funds” in the account of the petitioner on 20.11.1991. The complainant-respondent No. 2 in view of the dishonouring of the cheques served a notice dated 25.11.1991 through registered post and under postal certificate. The petitioner failed to make the payment within 15 days and accordingly. The complaint Annexure P-1 was filed in the Court of learned Chief Judicial Magistrate, Panipat on 17.12.1991.
3. The contention of the petitioner in challenging the aforesaid complaint is that once a cause of action had accrued, a complaint was liable to be filed at that stage only, A subsequent dishonour of the cheque would not give fresh cause of action.
4. After hearing learned Counsel for the petitioner and the State and considering the facts on record, it may be noticed that the Hon’ble Supreme Court in the case of Sadanandan Bhadran v. Madhavan Sunil Kumar, VII (1998) SLT 157= I (1999) BC 691 (SC)=III (1998) CCR 238 (SC) = 1998(6) SCC 514, held that Clause (a) of the proviso to Section 138 of the Act does not put any embargo upon the payee to successively present a dishonoured cheque during the period of its validity. This apart, in the course of business transactions it is not uncommon for a cheque being returned due to insufficient funds or similar such reasons and being presented again by the payee after some time, on his own volition or at the request of the drawer, in expectation that it would be encashed. The primary interest of the payee is to get his money and not prosecution of the drawer, recourse to which, normally, is taken out of compulsion and not choice. 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 pre-emptory action in exercise of his such right under Clause (b) of Section 138 of the Act, 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 of the Act, 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 offence and the cause of action for filing the complaint will arise.
5. In the case in hand as already noticed above, two cheques were issued on 18.8.1991 and on the same day both were presented for encashment. However, they were dishonoured because of insufficiency of funds in the account of the petitioner. The cheques were thereafter again presented on 2/3 occasions but were not honoured. These were last presented on 21.11.1991 when again they were returned with the remarks of insufficiency of funds. Thereafter, the complainant-respondent served a notice dated 25.11.1991. Therefore, for the earlier dishonour of the cheques, no cause of action accrued to the petitioner and only a fresh right was created. The cause of action accrued when after the serving the notice in terms of Clause (b) Section 138 of the Act, there was default on the part of the petitioner to pay the money within the stipulated time. Therefore, the contention of the learned Counsel for the petitioner that on the first presentation of the cheques, a cause of action had accrued to the complainant to file the complaint is clearly misplaced in view of the dictum of the Apex Court in Sadanandan Bhadran case (supra).
For the foregoing reasons there is no merit in these two criminal misc. petitions. Accordingly, the same are dismissed.