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Judgment
Petitioner has filed this petition under Section 482
Code of Criminal Procedure, 1973 challenging the orders dated
5.6.2013 and 29.6.2016.
Learned counsel for the petitioner has submitted
that respondent has filed a complaint under Section 138 of the
Negotiable Instruments Act, 1881 (hereinafter referred to as
the ''Act'') against the petitioner with regard to dishonour of
cheque dated 20.9.2009. The cheque in question was
presented for encashment on 11.12.2010 and was dishonoured
by the bank on account of "insufficient funds". However, the
cheque in question was liable to be returned as it has been
presented to the bank after its validity. Hence, the complaint
under Section 138 of the Act was liable to be dismissed. Trial
court has erred in taking cognizance of the offence vide order
dated 5.6.2013. Court of Revision has also erred in dismissing
the revision petition on the ground that the petitioner could
take the pleas available to him in his defence. Learned counsel
has placed reliance on decision of the Apex Court in Criminal
Appeal No. 219 of 2001 Special Leave Petition (crl.)
3854 of 2000 SHRI ISHAR ALLOY STEELS LTD. Vs.
JAYASWALS NECO LIMITED decided on 22/02/2001.
"The payee of the cheque has the option to
present the cheque in any bank including
the collecting bank where he has his
account but to attract the criminal
liability of the drawer of the cheque such
collecting bank is obliged to present the
cheque in the drawee or payee bank on
which the cheque is drawn within the period
of six months from the date on which it is
shown to have been issued. In other words
a cheque issued by (A) in favour of (B)
drawn in a bank named (C) where the
drawer has an account can be presented
by the payee to the bank upon which it is
drawn i.e. (C) bank within a period of six
months or present it to any other bank
for collection of the cheque amount
provided such other bank including the
collecting bank presents the cheque for
collection to the (C) bank. The non
presentation of the cheque to the drawee-
bank within the period specified in the
Section would absolve the person issuing
the cheque of his criminal liability under
Section 138 of the Act, who shall otherwise
may be liable to pay the cheque amount to
the payee in a civil action initiated under
the law. A combined reading of Sections
2, 72 and 138 of the Act would leave no
doubt in our mind that the law mandates
the cheque to be presented at the bank on
which it is drawn if the drawer is to be
held criminally liable. Such presentation is
necessarily to be made within six months
at the bank on which the cheque is drawn,
whether presented personally or through
another bank, namely, the collecting bank
of the payee. We have perused the
judgments of the Punjab & Haryana,
Gujarat and Madras High Courts and their
conflicting views and are of the opinion
that the Madras High Court has not
correctly interpreted the provisions of law
in this behalf. As, admittedly, in this case
the cheque was not presented before the
drawer''s bank within the statutory period
of six months, the criminal court had no
jurisdiction to issue the process against the
appellant. The impugned judgment of the
High Court being contrary to law is thus
not sustainable. The appeal is accordingly
allowed and the impugned judgment is set
side."
Learned counsel for the respondent has opposed the
petition and has submitted that the cheque in question had
been dishonoured on account of insufficiency of funds. Trial
court had rightly taken cognizance of the offence.
Section 138 of the Act reads as under:-
"Dishonour of cheque for insufficiency, etc.,
of funds in the account. --Where any cheque
drawn by a person on an account maintained
by him with a banker for payment of any
amount of money to another person from out
of that account for the discharge, in whole or
in part, of any debt or other liability, is
returned by the bank unpaid, either because
of the amount of money standing to the
credit of that account is insufficient to honour
the cheque or that it exceeds the amount
arranged to be paid from that account by an
agreement made with that bank, such person
shall be deemed to have committed an
offence and shall, without prejudice to any
other provisions of this Act, be punished with
imprisonment for [a term which may be
extended to two years], or with fine which
may extend to twice the amount of the
cheque, or with both: Provided that nothing
contained in this section shall apply unless--
(a) the cheque has been presented to the
bank within a period of six months from the
date on which it is drawn or within the period
of its validity, whichever is earlier;
(b) the payee or the holder in due course of
the cheque, as the case may be, makes a
demand for the payment of the said amount
of money by giving a notice in writing, to the
drawer of the cheque, [within thirty days] of
the receipt of information by him from the
bank regarding the return of the cheque as
unpaid; and
(c) the drawer of such cheque fails to make
the payment of the said amount of money to
the payee or, as the case may be, to the
holder in due course of the cheque, within
fifteen days of the receipt of the said notice.
Explanation.-- For the purposes of this
section, "debt or other liability" means a
legally enforceable debt or other liability. "
Thus, as per the above provision criminal
proceedings can be initiated against the drawer of the cheque in
case the cheque has been presented to the bank within the
prescribed period of its validity and the holder of the cheque
gives a notice to the drawer of the cheque within the prescribed
period of receipt of information given to him by the bank
regarding dishonour of the cheque and in case the drawer of
the cheque fails to make a payment within fifteen days from the
receipt of the notice to the holder of the cheque.
In the present case, the cheque in question was
issued on 20.9.2009 in the sum of Rupees one lac by the
petitioner in favour of the respondent. Complainant has stated
in Para 3 of the complaint that the cheque in question was
presented for encashment on 25.9.2009 and the same was
dishonoured on account of insufficiency of funds and he had
returned the cheque along with the receipt to the petitioner.
Complainant had not filed any complaint at that stage. There is
no explanation by the complainant in the complaint as to when
he again came in possession of the cheque in question.
Thereafter, the cheque was presented for encashment on
20.12.2010 and was dishonoured by the bank with the remarks
"funds insufficient" vide memo dated 21.12.2010. In the
present case, complaint has been filed by the complainant
basing reliance on the dishonour of the cheque by the bank vide
memo dated 21.12.2010. Cheque was presented for
encashment on 20.12.2010 much beyond the period of its
validity. The cheque should have been returned by the bank to
the holder of the cheque with the remarks that the validity of
the cheque had already expired but the bank erroneously vide
memo dated 21.12.2010 opined that the cheque was being
returned on account of insufficient funds. Be that as it may, the
cheque had been presented for encashment after the period of
its validity. Therefore, the complaint could not be entertained
for offence under Section 138 of the Act as the first prerequisite
for commission of offence was not made out in the present
case. The trial court has thus erred in taking cognizance of the
offence.
Accordingly, this petition is allowed. Impugned
orders are set aside. Consequently, complaint Annexure-1 is
dismissed.