2004 ALL MR (Cri) 70
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

J.G. CHITRE, J.

M/S. Pooja Granites And Marbles Ltd. Vs. Ispat Finance Ltd. & Anr.

Criminal Application No.552 of 1998,Criminal Application No.675 of 1998

27th February, 2003

Petitioner Counsel: Mr. MANOJ MOHITE
Respondent Counsel: Mrs. BOCCARO, Shri. K. V. SASTE

Negotiable Instruments Act (1881) S.138 - Dishonour of cheque - Issue of process - Cheques drawn on 5-1-1996 but presented only on 5-7-1996 i.e. after 6 months - Dishonour of cheque - Private complaint filed against the drawer of cheques - Issuance of process against the drawer - Order issuing process is illegal as the cheques were not deposited within period of 6 months - Order issuing process liable to be quashed.

Criminal P.C. (1973), Ss.204, 482.

When a drawee is presenting a cheque for encashment, he is obliged in view of provisions of section 138 of the Act to present it within six months and that too in the bank on which such cheque has been drawn. A person transacting in commercial activities has to take into consideration the time which would be required by the bank, where such cheques have been deposited for encashment, for processing and presenting in the drawer's bank for encashment because he is supposed to be well aware of all these eventualities. Therefore, if at all a prudent commercial person thinks that he should get the amount indicated by such cheque or negotiable instrument, he has to take the action within such period which would save him from the limitation expressed by section 138 of the Act. It is presumed that a person transacting in commercial activities is well aware of all such eventualities and mishaps. He has to act in a prudent way in a commercial transaction otherwise he has to suffer its consequences which may come in any nature including loss of money. In this case, cheques were presented on 5-7-96. It is a matter of debate whether for calculations it would be falling within the said period of six months or not. When such is a sensitive situation he has to take a prudent decision and has to react well in advance. Otherwise, he has to either thank himself or blame himself. 2001 ALL MR (Cri) 578 (S.C.) - Followed. [Para 6]

Cases Cited:
Shri. Ishar Alloy Steels Ltd. Vs. Jayaswals Neco Ltd., 2001 ALL MR (Cri) 578 (S.C.)=(2001)2 SCC 609 [Para 3,4]


JUDGMENT

JUDGMENT :- Both these petitions are being decided by a common judgment and order because the point around which they are revolving is the same and the facts are similar.

2. The petitioners are hereby assailing the correctness, propriety and legality of the order by which the learned Magistrate issued the process against them for attending the Court in respect of the case initiated against them in context with the provisions of section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act for convenience). These two petitions are dealing with two criminal prosecutions initiated against the petitioners in respect of two cheques one is for the sum of Rs.25 lacs and the other is the cheque for the sum of Rs.3,30,000/-. Both the cheques were drawn on the same day i.e. 5-1-1996 and both the cheques were submitted by original complainant - the respondent no.1 in Punjab National Bank on 5-7-96. Punjab National Bank presented those cheques to Samata Sahakari Bank Ltd., Santacruz (West), Mumbai on 8-7-96 and those cheques were dishonoured. Two complaints were filed in the court of concerned Magistrate. He took the cognizance of those two complaints and issued the process against the petitioners.

3. Shri. Manoj Mohite, counsel appearing for the petitioners, placed reliance on the judgment of the Supreme Court in the matter of Shri. Ishar Alloy Steels Ltd. Vs. Jayaswals Neco Ltd.,reported in (2001)3 Supreme Court Cases 609 : [2001 ALL MR (Cri) 578 (S.C.)] wherein the Supreme Court observed that in section 138 two words have been used, one "a bank" and second "the bank". The Supreme Court pointed out the difference between these two words and held that these two words have been used in the said section with specific purpose for indicating that the drawer may draw the cheque on any bank in which he has got the account and whenever such negotiable instrument has been given to drawee, he has to present it for payment in the bank on which the said negotiable instrument has been drawn and that has to be presented within six months from the date on which such negotiable Instrument has been drawn. If the drawee presents such negotiable instrument after six months in the bank on which the said negotiable instrument has been drawn, and if that is dishonoured, the drawee has to blame himself for such delay and if such negotiable instrument is dishonoured, the drawee cannot file a criminal complaint against the drawer on that count.

4. Shri. Mohite by pointing out these observations of the Supreme Court in Shri. Ishar Alloy Steels Ltd. case (supra) submitted that in the present case the drawee submitted those two cheques in Punjab National Bank which presented those cheques in Samata Sahakari Bank, Santacruz (West) on 8-7-96 and they were dishonoured. Therefore, the learned Magistrate should have by noticing this, dismissed the complaints without taking the cognizance of them.

5. Mrs. Boccaro, appearing for respondent no.1, submitted that in normal course of commercial transaction, respondent no.1 acted and presented those cheques in Punjab National Bank with the hope that they would be presented on the same day to Samata Sahakari Bank. She submitted that as those cheques were for a huge amount, Punjab National Bank might have taken time for its due process and for that the respondent no.1 should not be left to suffer.

6. When a drawee is presenting a cheque for encashment, he is obliged in view of provisions of section 138 of the Act to present it within six months and that too in the bank on which such cheque has been drawn. A person transacting in commercial activities has to take into consideration the time which would be required by the bank, where such cheques have been deposited for encashment, for processing and presenting in the drawer's bank for encashment because he is supposed to be well aware of all these eventualities. Therefore, if at all a prudent commercial person thinks that he should get the amount indicated by such cheque or negotiable instrument, he has to take the action within such period which would save him from the limitation expressed by section 138 of the Act. It is presumed that a person transacting in commercial activities is well aware of all such eventualities and mishaps. He has to act in a prudent way in a commercial transaction otherwise he has to suffer its consequences which may come in any nature including loss of money. In this case, cheques were presented on 5-7-96. It is a matter of debate whether for calculations it would be falling within the said period of six months or not. When such is a sensitive situation he has to take a prudent decision and has to react well in advance. Otherwise, he has to either thank himself or blame himself.

7. The Supreme Court judgment is recent judgment. That could not have come to the notice of the Magistrate who issued the notice and, therefore, he landed in error of issuing the process and deciding to conduct the trial against the petitioners. The said orders happened to be illegal and, therefore, they need to be quashed by exercising the jurisdiction and authority of this Court in view of section 482 of the Criminal Procedure Code, 1973 and Articles 226 and 227 of the Constitution of India. Thus, both the writ petitions are allowed and the orders assailed by those petitions are hereby quashed. The petitioners are exonerated from those prosecutions. They need not attend the court in respect of the summons if at all issued to them. No order as to costs. Rule stands made absolute.

Petitions allowed.