JUDGEMENT
M. K. Mukherjee, J. -
(1.)This appeal is directed against the judgment and order dated February 26, 1992 rendered by a learned single Judge of the Kerala High Court in Criminal Misc. Case No. 1373 of 1991. Facts relevant for disposal of this appeal are as under.
(2.)On January 4, 1991, the respondent handed over a cheque for Rs. 30,000/- to the appellant in liquidation of the loan he obtained from the latter. The cheque was presented in the bank for encashment on January 5, 1991 but was returned for want of sufficient funds in the account of the respondent. The appellant then sent a lawyer's notice to the respondent on January 15, 1991 calling upon him to pay the aforesaid amount. On receipt of the notice the respondent approached the appellant and requested for some time to pay the amount. In view of the assurance so given the appellant did not initiate any further proceeding but as the respondent did not keep his promise he presented the cheque in the bank once again on May 4, 1991. This time also the cheque was dishonoured for want of sufficient funds. Another notice dated May 9, 1991 was then served upon the respondent demanding payment of the amount but he failed to make the payment. The appellant then filed a complaint against the respondent on June 30, 1991 under Section 138 of the Negotiable Instruments Act, 1881 ('Act' for short). On that complaint cognizance was taken and the respondent was summoned to face the trial. After entering appearance the respondent filed an application stating that in view of the Division Bench judgment of the Kerala High Court in Kumaresan v. Ameerappa, (1991) 1 Ker LT 893, (since overruled by a Full Bench of that Court in M/s. S.K.D.L. Fireworks Industries v. K.V. Sivarama Krishnan, 1995 Cri LJ 1384) wherein it was held that there could not be more than one cause of action in respect of a single cheque, the complaint was not maintainable. The trying Magistrate accepted the contention of the respondent and acquitted him. Against the order of acquittal the appellant moved the High Court but relying upon the judgment in Kumaresan's case (supra), it upheld the order of the Magistrate.
(3.)In the context of the above facts the question that requires to be answered in this appeal is whether the payee or holder (hereinafter referred to as 'payee' for the sake of brevity) of a cheque can initiate prosecution for an offence under Section 138 of the Act for its dishonour for the second time, if he had not initiated such prosecution on the earlier cause of action. The above question came up for consideration before different High Courts in several cases, besides those of Kumaresan (1991 (1) Ker LT 893) and Fireworks Industries (supra); and culling the judgments rendered therein we find that the following three different propositions have been laid down by one or the other High Court:
i) a cheque can be presented for encashment on any number of occasions within the period of its validity and its dishonour on every occasion will give rise to a fresh 'cause of action' within the meaning of clause (b) of Section 142 of the Act so as to entitle the payee to institute prosecution under Section 138 on the basis of the last cause of action;
ii) a cheque can be presented for encashment on any number of occasions within the period of its validity but there can be only one cause of action under Section 142(b) arising from its last dishonour; and
iii) only for the first dishonour and not subsequent dishonours can a prosecution under Section 138 be instituted as Section 138(c) read with Section 142(b) envisages only one cause of action in respect of one and the same cheque.