KAMLESH KUMAR versus STATE OF BIHAR & ANR.

Citation: [2013] 12 S.C.R. 793 · Decided: 11-12-2013 · Supreme Court of India · Bench: K.S. RADHAKRISHNAN · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[2013] 12 S.C.R. 793 
KAMLESH KUMAR 
v. 
STATE OF BIHAR & ANR. 
(Criminal Appeal No. 2083 of 2013) 
DECEMBER 11, 2013 
[K.S. RADHAKRISHNAN AND A.K.SIKRI, JJ.] 
Negotiable Instruments Act, 1881: 
A 
8 
s. 138 - Dishonour of cheque - Legal notice not sent c 
within 30 days of the knowledge of such dishonor- Held: The 
right to present the same cheque for second time is available 
to complainant - However, period of limitation is not to be 
counted from the date when the cheque in question was 
presented in the first instance or the legal notice was issued o 
in that regard asmuchas the cheque was presented again -
After the cheque is returned unpaid, notice has to be issued 
within 30 days of the receipt of information in this behalf- It 
is clear from the averment made by the complainant himself 
that he had gone to the bank for encashing the cheque and 
E , 
found that because of unavailability of sufficient balance in 
the account, the cheque was bounced -
In view of this 
admission in the complaint about the information having been 
received by the complainant about the bouncing of the 
cheque on the date of presentation of the cheque itself, no 
F 
further enquiry is needed on this aspect -
Thus, the 
complaint filed by him was not maintainable as the legal 
notice was not issued within 30 days from the date of 
information. 
Respondent no. 2 presented a cheque second time · G 
on 10.11.2008. After it was dishonoured, he issued legal 
notice dated 17.12.2008 to the appellant, and thereafter 
filed a complaint on 7.1.2009, u/s 138 of the Negotiable 
793 
H 
794 
SUPREME COURT REPORTS 
(2013] 12 S.C.R. 
A Instruments Act, 1881 against the appellant for dishonour 
of the said cheque. The appellant filed a petition u/s 482 
of the Code of Criminal Procedure, 1973 for quashing of 
the order dated 28.10.2009 whereby the Court ot 
Magistrate had taken cognizance of the complaint and 
B issued summons to the appellant. The case of the 
appellant was that he was a doctor by profession; that 
he found certain cheques, some signed and some 
unsigned, missing from his clinic in December 2006 in 
respect of which he gave information to the Sub-
C Divisional Officer on 30.12.2006; that the cheque in 
question was also one of those stolen cheques. The High 
Court dismissed the petition holding that trial had 
commenced and two witnesses had already been 
examined and discharged. 
D 
Allowing the appeal, the Court 
· HELD: 1.1. In the instant case, the complainant had 
not filed the complaint on the dishonor of the cheque in 
the first instance, but presented the said cheque again 
E for encashment. This right of the complainant in 
presenting the same very cheque for the second time is 
available to him under the provision of s.138 of N.I. Act. 
The act of the complainant in presenting the cheque 
again cannot be questioned by the appellant. [para 8-9] 
· F [800-D; 801-C-D] 
MSR Leathers vs. S.Palaniappan & Anr. 2012 
(9) SCR 165 = (2013) 1 sec 177 - relied on. 
1.2. However, period of limitation is not to be counted 
. G from the date when the cheque in question was 
presented in the first instance on 25.10.2008 or the legal 
notice was issued on 27.10.2008, inasmuch as the 
cheque was presented again on 10.11.2008. For the 
purposes of limitation, in so far as legal notice is 
H concerned, it is to be served within 30 days of the receipt 
KAMLESH KUMAR v. STATE OF BIHAR 
795 
of information by the drawee from the bank regardi!'lg the 
A 
return of.the cheque as unpaid. Therefore, after the 
cheque is returned unpaid, notice has to be issued within 
30 days of the receipt of information in this behalf. That 
is the period of limitation provided for issuance of legal 
notice calling upon the drawer of the cheque to make the 
8 
payment. After the sending of this notice 15 days time is 
to be given to the noticee, from the date of receipt of the 
said notice to make the payment, if that is already not 
done. If noticee fails to make the payment, the offence can 
be said to have been committed and in that event cause 
C 
of action for filing the complaint would accrue to the 
complainant and he is given one month time from the 
date of cause of action to file the complaint. [para 11] 
[804-C-G] 
1.3. After the judgment was reserved, the D 
complainant filed the affidavit alleging that he received 
the bank memo of the bouncing of cheque on 17.11.2008 
and therefore legal notice sent on 17.12.2008 was within 
the period 30 days fro
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