Order
1. Heard the learned counsel for the parties.
2. The facts of the case are that the appellant presented four cheques with the bank on 21-11-1996 which were issued by the respondents. On 22-11-1996, the said cheques were returned by the bank with an endorsement “not arranged funds for”. On the request made by the respondents, the appellant waited for settlement and did not take any action. Since, the respondents did not make any payment, the appellant sent a notice on 8-1-1997 under Section 138(b) of the Negotiable Instruments Act, 1881 (for short “the Act”) which was duly received by the respondents.
3. The learned counsel appearing for the respondents contended that the notice dated 8-1-1997 was not a notice under Section 138(b) of the Act. We have perused the notice dated 8-1-1997 and, in our opinion, it is certainly a notice under Section 138(b) of the Act, since demand for payment has been made by the said notice, though it appears to be time-barred as it appears to have been sent beyond the period mentioned in Section 138(b) of the Act. Hence, we do not accept the submission that it is not a notice under Section 138(b) of the Act. However, the controversy does not end there, because it appears that the four cheques were again presented before the bank on 21-1-1997 and they were again dishonoured on 24-1-1997 for want of sufficient funds.
4. On 28-1-1997, the appellant sent a notice under Section 138(b) of the Act to the respondents stating that the cheques given by them were dishonoured for want of sufficient funds and calling upon them to pay the said amount with interest within 15 days. The said notice was received by the respondents on 3-2-1997.
5. As can be seen from the above facts, while the first notice dated 8-1-1997 was beyond the limitation period, as required under Section 138(b) of the Act, the second notice sent by the appellant under the said Act was within the limitation period from the date the bank informed the appellant on the second occasion i.e 28-1-1997. In the circumstances, the question which arises is: whether the action of the appellant was time-barred under Section 138(b) of the Act or not?
6. The learned counsel for the parties have invited our attention to a decision of this Court in Sadanandan Bhadran v. Madhavan Sunil Kumar (1998) 6 SCC 514. In para 9 of the said decision, this Court observed as under:
“9. Now, the question is how the apparently conflicting provisions of the Act, one enabling the payee to repeatedly present the cheque and the other giving him only one opportunity to file a complaint for its dishonour, and that too, within one month from the date the cause of action arises, can be reconciled? Having given our anxious consideration to this question, we are of the opinion that the above two provisions can be harmonised, with the interpretation that 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, 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, 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. Needless to say, the period of one month from filing the complaint will be reckoned from the day immediately following the day on which the period of fifteen days from the date of the receipt of the notice by the drawer expires.”
7. We have some reservations about the correctness of the observations made in para 9 of the aforesaid decision and in our opinion the view expressed therein requires to be reconsidered by a larger Bench of this Court. Let the papers of this case be placed before the Hon'ble the Chief Justice of India to constitute a larger Bench.