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TMI Blog2024 (10) TMI 1536X X X X Extracts X X X X X X X X Extracts X X X X ..... the lapse of the statutory period of validity of the cheque. Thus, it was rightly dishonoured with an endorsement outdated/state cheque. In the present case, the learned Trial Court noticed the date of presentation of the cheque before the bank of the complainant but failed to notice that presentation of the cheque before the bank of the complainant was not material and the presentation before the bank of the accused was necessary within three months to confer a cause of action upon the complainant. The learned Trial Court also failed to appreciate the significance of the memo of dishonour, in which the reason for dishonour was mentioned as out dated/state and the fact that such a memo does not confer a cause of action to file complaint under Section 138 of the N.I.Act. The learned Appellate Court failed to notice both these aspects. Hence, the judgments and order passed by the learned Courts below are not sustainable. The present appeal is allowed and the judgments and order passed by the learned Courts below are ordered to be set aside. The complaint is dismissed not maintainable. The accused is acquitted for the commission of an offence punishable under Section 138 of N.I. Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his case. 5. The accused in his statement recorded under Section 313 of Cr.P.C. denied the case of the complainant in its entirety. He stated that he was innocent and wanted to lead defence evidence. He examined Jai Chand Chandel (DW-1) in his defence. 6. Learned Trial Court held that there is a presumption under Section 139 of the N.I. Act regarding the consideration. The accused has to rebut the presumption. The statement of the complainant proved that he had sent the apple boxes to the accused. It was corroborated by the statement of DW-1, who stated that the licence was issued to Dhanta Fruit Traders (DFT). The accused did not dispute his signatures on the cheque and presumption of consdeiration applied. There was no material to rebut the presumption and the suggestion made to the complainant does not amount to any proof. The cheque was presented within three months from the date of issuance viz 21.10.2017 and was dishonoured for the reason of instrument out dated/stale on 23.01.2018. The demand notice was issued on 03.02.2018 and the complaint was filed within the statutory period. All the ingredients of Section 138 of the N.I.Act were duly satisfied. Hence, the accused was co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not presented before the bank within three months from the date of its issuance. The dishonour of an outdated/stale cheque does not give rise to a liability under Section 138 of the N.I Act. Therefore, he prayed that the present petition be allowed and the judgments and order passed by the learned Courts below be set aside. 11. Mr. Bhupinder Singh, learned counsel for the respondent/complainant supported the judgments and order passed by the learned Courts below and submitted that the cheque was presented before the bank of the complainant on 17.01.2018 within the period of limitation and was wrongly dishonoured with an endorsement instrument out dated/stale cheque. The learned Courts below had rightly held that the accused was liable for the commission of an offence punishable under Section 138 of N.I. Act. Hence, he prayed that the present revision be dismissed. 12. I have given considerable thought to the submissions made at the bar and have carefully gone through the records. 13. It was laid down by the Hon ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204: (2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional court does not exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise the orders, which upon the face of it bear a token of careful consideration and appear to be in accordance with the law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes but are merely indicative. Each case would have to be determined on its own merits. 13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex-facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sic indefinite) article and the latter is prefixed by a direct (sic definite) article. If the legislature intended to have the same meanings for a bank and the bank , there was no cause or occasion for mentioning it distinctly and differently by using two different articles. It is worth noticing that the word banker in Section 3 of the Act is prefixed by the indefinite article a and the word bank where the cheque is intended to be presented under Section 138 is prefixed by the definite article the . The same section permits a person to issue a cheque on an account maintained by him with a bank and makes him liable for criminal prosecution if it is returned by the bank unpaid. The payment of the cheque is contemplated by the bank meaning thereby where the person issuing the cheque has an account. The is the word used before nouns, with a specifying or particularising effect as opposed to the indefinite or generalising force of a or an . It determines what particular thing is meant; that is, what particular thing we are to assume to be meant. The is always mentioned to denote a particular thing or a person. The would, therefore, refer implicitly to a specified bank and not any bank. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court being contrary to law is thus not sustainable. The appeal is accordingly allowed and the impugned judgment is set aside. 17. Thus the presentation of the cheque before the bank the complainant will not assist him. 18. The cheque was dishonoured by the bank of the accused on 23.01.2018. The cheque was issued on 21.10.2017 and was to be presented before the drawee bank within three months excluding the date of drawing of the cheque. The cheque was to be presented before the drawee bank on or before 21.01.2018 but it was presented on 23.01.2018 after the lapse of the statutory period of validity of the cheque. Thus, it was rightly dishonoured with an endorsement outdated/state cheque. 19. Delhi High Court held in H.D. Gumber v. Ashok Sachdeva, 2012 SCC OnLine Del 2037 that when the cheque was was not presented within a period of validity the cheque became invalid and could not be held liable. It was observed: - 8. Admittedly, the cheque was drawn on 23 rd November, 2002 and the period of six months within which, it could be presented to the bank on which it was drawn, expired on 22.5.2003. However, the cheque was presented by the complainant on 23.5.2003 i.e. one day after the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt for encashment after the expiry of currency of three months and in such circumstances, the provisions of Section 138 of the Negotiable Instruments Act are not attracted in this case in view of Clause (a) of the proviso to Section 138 of the. Negotiable Instruments Act. The Supreme Court, in the case of Shri Ishar Alloys Steels Ltd. v. Jayaswals NECO Ltd. [(2001) 3 SCC 609 : AIR 2001 SC 1161, observed in para 9 as under: It, however, does not mean that the cheque is always to be presented to the drawer's Bank on which the cheque is issued. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in advance, considering the exigencies or contingencies or delay that is likely to occur on the part of the collecting Bank or the postal Authorities. He cannot wait till the last day of the period of validity for presentment of the cheque, because proviso (a) to Sec. 138 makes it abundantly clear that if presentment of a cheque is not made within 6 months from the date on which the cheque is drawn or within the period of its validity whichever is earlier, the cause to lodge the complaint does not subsist or live on, for in that case the offence cannot be said to have been constituted and payee or holder of a cheque loses his right if there be any to initiate criminal action. 11. In this case, presentment of the cheque to the paying Bank is, in view of the above stated dates, not made within 6 months of the date of the cheque. The presentment is late by four days. The cheque, therefore, became a stale cheque and the same was, therefore, bounced without honouring the same. As the presentment is not inconsonance with Sec. 138 of the Act, and is lateby 4 days, one of the essential requirements of Sec. 138 of the Act for initiating penal action is not satisfied. When that is so, the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... object of the Government in establishing Treasury Savings Bank Scheme is to provide a ready meansfor the deposit of savings and so to encourage thrift. Treasury Code Vol. I, Part I, Rule 2(c) defines cheque and Rule 61(1) deals with non-Banking Treasuries and Rule 61(2) deals with Banking Treasuries. Chapter III of the Kerala Treasury Code Vol. II deals with the rules relating to Treasury Savings Bank. The counsel for the appellant argued that transaction in the Banking Treasury is similar to the transaction in ordinary Banks and the Treasury cheque drawn has to be treated as a cheque drawn on a Bank for all purposes under S. 138 of the Negotiable Instruments Act and there cannot be any distinction between ordinary Bank and the Treasury dealing with Banking transactions. 9. The counsel for the appellant further argued that Banking being Union subject in the first list of Schedule 7 of the Constitution, the Treasury Code which is a subordinate legislation promulgated by the Governor of Kerala applicable to the territory in Kerala under Art. 283(2) of the Constitution, cannot have overriding effect on the provisions of the Negotiable Instruments Act enacted by the Parliament and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt after the expiry of currency of three months, the provisions of S. 138 of the Negotiable Instruments Act are not attracted in this case in view of clause (a) of the proviso to S. 138 of the Act. 22. A Similar view was taken by Delhi High Court in Ansh Chugh vs. Pradeep Gupta, 2020 STPL 8425 Delhi, wherein it was held:- 7. Admittedly, the cheque was presented to the drawee bank after the period of expiry of its validity of three months, which is to be calculated from the date mentioned on the cheque. The Clause (a) of Proviso to Section 138 of N.I. Act stipulates that Section 138 shall not be applicable unless the cheque is presented to the bank within a period of six months (the period has been reduced from 6 months to 3 months vide the aforementioned RBI notification dated 04.11.2011) from the date on which it is drawn or within the period of its validity, whichever is earlier. 8. In Shri Ishar Alloys Steel Ltd. v. Jayaswals NECO Ltd., (2001) 3 SCC 609 , the Supreme Court held that nonpresentation 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 N.I. Act. 9. The Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received by the payee bank, i.e. H.P. State Cooperative Bank, branch Beri, District Bilaspur, H.P. on 15.03.2005, i.e. after six months from the date of issuance of the cheque which lapsed on 13.03.2004. 9. Hon ble Supreme Court in Shri Ishwar Alloy Steels Ltd. Versus Jayaswals Neco LTD., (2003) 3 Supreme Court Cases 609, has been pleased to hold that the law mandates a cheque to be presented at the bank on which it is drawn if the drawer is to be held criminally liable necessarily within six months as from the date of its issuance (this judgment relates to the period when the validity of cheque used to be for a period of six months). In Para10 of said judgment, Hon ble Supreme Court has been pleased to hold as under: It, however, does not mean that the cheque is always to be presented to the drawer's bank on which the cheque is issued. 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rani vs. The State of Telangana (12.04.2023 - TLHC) : MANU/TL/0599/2023 27. and held:- 7. It is not in dispute that the subject cheque was presented beyond the three month period of the date of the cheque. The Reserve Bank of India had issued notification on 04.11.2011 signed by the Chief General Manager in-Charge. The said notification was issued in exercise of the powers conferred by Section 35A of the Banking Regulation Act, 1949 and accordingly directed the Banks not to make payment of the cheques/drafts/pay order/bankers cheque if the cheques are presented beyond the period of three months from the date of such instruments. Section 35A in BANKING REGULATION ACT,1949 reads as follows: 35A Power of the Reserve Bank to give directions. - Where the Reserve Bank is satisfied that- in the 178 [public interest]; or 179 [ in the interest of banking policy; or] to prevent the affairs of any banking company being conducted in a manner detrimental to the interests of the depositors or in a manner prejudicial to the interests of the banking company; or to secure the proper management of any banking company generally, it is necessary to issue directions to banking companies generally or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplainant was not material and the presentation before the bank of the accused was necessary within three months to confer a cause of action upon the complainant. The learned Trial Court also failed to appreciate the significance of the memo of dishonour, in which the reason for dishonour was mentioned as out dated/state and the fact that such a memo does not confer a cause of action to file complaint under Section 138 of the N.I.Act. The learned Appellate Court failed to notice both these aspects. Hence, the judgments and order passed by the learned Courts below are not sustainable. The learned Courts below had failed to notice the most import ingredients of the commission of the offence punishable under Section 138 of the N.I.Act, which is not merely an error in the appreciation of the evidence but a defect of jurisdiction because dishonour of cheque on the ground of it being out dated/stale does not fall within the purview of Section 138 of N.I.Act as noticed above. Hence, the judgments and order passed by the learned Courts below cannot be sustained. 27. In view of above, the present appeal is allowed and the judgments and order passed by the learned Courts below are ordered to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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