IMPORTANT POINT
Cheque is required to be presented at paying Bank i.e. drawee within period of six months of its validity period of validity initiation of criminal action under Section 138 of Negotiable Instruction Act.

H.R. Shelat, J. – The petitioner, against whom a Criminal Case No. 4061 of 1997 is filed in the Court of the Judicial Magistrate (F.C.) at Bhavnagar, relating to the offence punishable under Section 138 of the Negotiable' Instruments Act (hereinafter referred to as 'the Act'), prays for setting aside the common order dated 15-6-1998 passed rejecting his applications, Ex. 6, 8 & 10, quashing of the complaint, and his discharge etc.

2. The question of vital importance that arises for consideration is to, which Bank (paying or collecting), the cheque is to be presented within 6 months or during its validity period for legally & validly initiation of criminal action under Sec. 138 of the Act?

3. The fact, necessary for disposal of this application, may, in brief, be stated. The petitioner and opponent No. 1, were having legal transactions. When account was settled, Rs. 1,00,000/- were found due to the opponent No. 1 from the petitioner. The petitioner therefore, in order to fulfill his obligation, to pay the amount, issued the cheque for Rs. 1,00,000/- on 24th January, 1997. The cheque was drawn on the Branch of Veraval Mercantile Cooperative Bank Ltd., Veraval at Junagadh (for short, 'the paying Bank'). The opponent No. 1 presented the cheque on 24th July, 1997 at Bhavnagar Nagrik Sahakari Bank Ltd., at Bhavnagar (for short, 'the collecting Bank'). On the same day collecting Bank sent the cheque to the paying Bank, i.e., drawee at Junagadh. The cheque was received by the paying Bank on 28th July, 1997. The cheque was on the same day returned on the ground that the account was closed. On receipt of the intimation that the cheque was dishonoured the opponent No. 1 on 11th August, 1997, gave a notice to the petitioner calling upon him to make the payment. The payment, after the receipt of the notice, has not made. The opponent No. 1, therefore, on 10th September 1997 filed the complaint in the Court of the Chief Judicial Magistrate at Bhavnagar, which was later on assigned to the Judicial Magistrate (F. C.) at Bhavnagar for hearing and disposal in accordance with law. As the complaint was registered summons against the petitioner was issued. After being served with the summons the petitioner appeared before the Court of the Judicial Magistrate (F.C.) at Bhavnagar on 9th October 1997. Studying the allegation against him, he filed an application Ex. 6 on 7th October, 1997 requesting the Court to discharge him holding that the court was having no jurisdiction. On 24th December, 1997; another application Ex. 8 was also filed by the petitioner requesting the Court to dismiss the complaint and discharge him as the cheque was not presented within 6 months, the period of its validity. Lastly on 21st January, 1998, the petitioner presented the third application, Ex. 10 requesting the Court to discharge him under Section 245(2) of the Criminal Procedure Code, because the cheque was presented 'after the expiry of the period of 6, months. The learned Judicial Magistrate' at ' Bhavnagar heard all the three applications together and by a common order dated 15th June, 1998, rejected all the three applications, mainly on the ground that the question of want of jurisdiction and bar of limitation owing to validity period of 6 months could be decided after the evidence was recorded in the case. Against that order, the present application is filed for the aforesaid relief.

4. On several ground the order of the learned Judicial Magistrate, is assailed but at the time of submission before me the learned Advocate representing the petitioner tapered off his submissions confining to the only point relating to the presentment of a cheque. According to him, the cheque-is required

to be presented at the paying Bank (drawee) and not the collecting Bank. In this case, the cheque dated 24th January 1997 ought to have been presented at the paying Bank. within the period of 6 months instead that the cheque was presented on 24th July, 1997 at the collecting Ba