G. Balasubramaniam vs C. Periyasamy

M. Jeyapaul, J.—This Criminal Original Petition is filed seeking the quashment of the proceedings in C.C. No. 852 of 2004 on the file of the

Judicial Magistrate No. 1, Erode.

The petitioner, who is the accused in the above said criminal case for the offence punishable u/s 138 of the Negotiable Instruments Act, moved

this petition for quashment of the proceedings pending before the learned Magistrate. The allegation is that the petitioner issued a cheque to the

respondent towards the discharge of a subsisting liability and when the same was presented for payment twice, it was returned dishonoured with

the endorsement ""exceeds arrangement"". The respondent having issued the statutory notice on 1-7-2004, lodged the complaint against the

petitioner for the offence punishable u/s 138 of the Negotiable Instruments Act.

Learned counsel for the petitioner would submit that the cheque had been presented well beyond the period of six months from the date of

issuance of the cheque. The further submission is that the respondent did not inform the petitioner, before re-presenting the cheque for the second

time, about the dishonour of the cheque when it was presented for payment for the first time.

Per contra, learned Counsel for the respondent/complaint would submit that the cheque was presented for payment within six months from the

date written on the cheque. It is his further submission that no statutory notice was issued to the petitioner when the cheque was dishonoured on

presentation for payment for the first time and that the complaint was lodged within the statutory period of forty-five days from the date of receipt

of the statutory notice by the petitioner.

Admittedly, the cheque in question bears on its face the date ""30-4-2004"". It was presented for payment for the first time on 2-5-2004 and, on

dishonour, it was again re-presented on 12-6-2004. A cheque remains valid for presentation for payment for a period of six months from the date

written on the face of the instrument. Therefore, the date written on the face of the instrument should be taken into account for determining the

validity of the cheque and not the date on which the cheque was issued by the drawer. The Apex Court in Ashok Yeshwant Badave Vs. Surendra

Madhavrao Nighojakar and Another, observed as follows:

A post-dated cheque is not payable till the date which is shown thereon arrives and will become a cheque on the said date and prior to that date

the same remains a bill of exchange.... The post-dated cheque becomes a cheque within the meaning of Section 138 of the Act on the date which

is written thereon and the six months period has to be reckoned for the purposes of Proviso (a) to Section 138 of the Act from the said date.

In view of the above ratio laid down by the Supreme Court, the petitioner cannot contend that the relevant date for reckoning the period of six

months period for the purpose of presentation of the cheque is the date on which the cheque was issued by the drawer. The first contention is,

therefore, rejected.

A payee/holder in due course of the cheque is entitled to re-present the cheque for payment for any number of times before the cheque

becomes stale on the expiry of six month''s period from the date written on the face of the cheque. The only embargo for the purpose of initiating

action u/s 138 of the Negotiable Instruments Act is that he has to launch the prosecution within forty-five days from the date of receipt of the

statutory notice by the drawer of the cheque. Once the statutory notice is received by the drawer, the period of limitation would start running from

the said date and the subsequent re-presentation of the cheque and issuance of any notice thereafter cannot stop the movement of the period of

limitation. In the present case, when the cheque in question was returned dishonoured for the second time, the respondent issued the statutory

notice u/s 138 of the Negotiable Instruments Act on 1-7-2004, which was received by the petitioner on 12-7-2004, and having not received any

positive response from the petitioner, he preferred the complaint u/s 138 of the Act on 18-8-2004, which is well within the period of limitation. In

view of the above, this Court finds that there is no substance in the contention that the complaint is hopelessly barred by limitation. The second

contention also fails.

In the result, the petition stands dismissed. Connected Crl.M.P. is closed.