Cri. Rev. No. 1486 of 1999

6th July, 2000

Petitioner Counsel: Shri. R. S. JAIWSAL
Respondent Counsel: Shri. PRASHANT JAISWAL

Cases Cited:
Arunbhai Nilkanthrai Vs. Jayaben Prahladbhai through Her Power of Attorney and Anr., 1999(3) Crimes 252 [Para 4]
Om Prakash Vs. Gurcharan Singh, 1997(3) Crimes 433 [Para 4]
A.B.K. Publications Ltd. & Ors. Vs. Tamil Nadu Newsprint & Paper Ltd., 1999 (3) Crimes 97 [Para 4,5]

JUDGMENT

S. S. SARAF, J.:- This is a Criminal Revision under Section 397 read with Section 401 of Code of Criminal Procedure against the order dated 3-7-1999 passed by the learned Special Judge, Raipur in Criminal Case No. 190/98 quashing the order dated 6-7-1998 passed by the learned J.M.F.C., Raipur whereby a criminal case for offence under Section 138 of the Negotiable Instruments Act was registered against the respondents on the basis of a complaint.

2. There was a business transaction between the parties and consequently the respondents issued a Cheque No. 2477086 dated 21-7-1997 for Rs. 10,00,000/-. When the cheque was sent to the bank, it was dishonoured as its payment was stopped by the drawer. The petitioner gave a notice as required by law and ultimately filed a criminal complaint against them which was registered as per order dated 6-7-1998 passed by the learned J.M.F.C., Raipur in Criminal Case No. 464/98. Being aggrieved by the said order, the respondents filed a revision petition before the Sessions Court. The learned Special Judge, Raipur by the impugned order dated 3-7-1999 in Criminal Case No. 190/98 quashed the order dated 6-7-1998 passed by the learned J.M.F.C. Being aggrieved by the impugned order dated 3-7-1999, passed by the learned Special Judge, Raipur, the present petition has been filed.

3. The sole question for consideration before this Court is whether the cheque should be presented within six months before the drawer's bank or it can be presented before the drawer as well as the payee's bank. The learned counsel for the respondent has contended that the cheque should be presented within six months to the drawer's bank and since the cheque in question was not presented within six months to the drawer's bank, the order passed by the learned Special Judge is not proper. On the other hand, learned counsel for the petitioner has urged that the cheque could have been presented either to the drawer's bank or to the payee's bank as per provisions of Section 138 of the Negotiable Instruments Act and therefore the impugned order is not sustainable in law.

4. Having heard the learned counsel for both the sides, I am of the view that the contention raised by the learned counsel for the petitioner has considerable substance. The provisions of Section 138 of the Negotiable Instruments Act require presentment of the cheque to the bank within a period of six months and therefore if the cheque is presented before the payee's bank within a period of six months, the said requirement is fulfilled. The learned counsel for the respondents have relied upon the judgments of Gujarat High Court Arunbhai Nilkanthrai Vs. Jayaben Prahladbhai through Her Power of Attorney and another, 1999 (3) Crimes 252, and the another decision of Punjab and Haryana High Court in 0m Prakash Vs. Gurcharan Singh, 1997 (3) Crimes 433. On the other hand, learned counsel for the petitioner has placed his reliance on the decision of Madras High Court in A.B.K. Publications Ltd. and others Vs. Tamil Nadu Newsprint and Papers Ltd., 1999 (3) Crimes 97.

5. Having perused the reasoning given by the Gujarat High Court and Punjab & Haryana High Court, I respectfully disagree with the views taken by Gujarat and Punjab & Haryana High Courts. I agree with the view taken by the Madras High Court in A.B.K. Publications Ltd'.s case (supra). As per requirement of Section 138 of the Negotiable Instruments Act, the cheque is to be presented in 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. There is no provision in Section 138 of the Negotiable Instruments Act that such presentment should be in the drawer's bank only. The cheque can be presented either in the payee's bank or in the drawer's bank within a period of six months from the date on which it was drawn.

6. In view of above, the petition is allowed. The impugned order passed by the learned Special Judge, Raipur is not sustainable in law and therefore it is quashed, while the order dated 6-7-98 passed by the learned J.M.F.C., Raipur is restored.

Petition allowed.