M. Karpagavinayagam, J.- Mr. R.T. Duraisamy, learned Counsel for the petitioner, seeking to quash the proceedings under Section 138 of the Negotiable Instruments Act, 1881, has raised the following points :

(i) The cheque was obtained by the complainants from the accused only out of threat and coercion. Even according to the complaints, an agreement was entered into between the complainants, and the petitioner in the presence of Panchayatdars. As per the said agreement, it was decided that in violation of any term, the parties should go to the Civil Court. Therefore, the act of approaching the criminal Court under Section 138 of the Negotiable Instruments Act is not valid in law.

(ii) The contents of the complaints alleging that the petitioner issued a cheque in discharge of a liability are entirely false. Therefore, the complaints have to be dismissed.

(iii) As per the agreement, the petitioner issued the cheque on November 16, 1998, in favour of the complainants but the cheque was presented on May 13, 1999, and whereas in the agreement, it was agreed by the parties that the cheque should be presented within 5 1/2 months from the date of the agreement. Since the cheque was presented after the expiry of 5 1/2 in violation of the time fixed in the agreement the complaint is not valid.

2. I heard Mr. K.N. Basha, learned Counsel for the respondents.

3. On going through the records, I am of the view that none of the rounds would merit consideration at this age.

4. Merely because the parties agreed to go to the Civil Court to seek their respective reliefs that would not absolve the right of the complainants to approach the criminal Court by filing a private complaint under Section 138 of the Negotiable Instruments Act, if the materials are available to establish that the petitioner has committed the offence under Section 138 of the Act.

5. Similarly, the contention urged by Counsel for the petitioner that the entire complaint in false also cannot be countenanced in view of the fact that whether the averments in the complaint are true or not is not the question to be decided by this Court under Section 482 of the Criminal Procedure Code.

6. On the other hand, the Trial Court has to decide the said issue on the basis of the materials placed before the Court. Therefore, this contention would also fail.

7. Lastly, Counsel for the petitioner would contend that there is a time-limit namely 5-1/2 months mentioned as the period of validity of the cheque. The cheque was presented before the Bank only after the expiry of the said period and therefore the complaint is not valid.

8. According to Counsel for the petitioner, the period of validity of the cheque was fixed by the parties in the agreement dated November 16, 1998. On the basis of the same, it is contended that the cheque shall be presented as per Section 138(a) of the Act within a period of six months from the date on which it was drawn or the period of validity, whichever is earlier.

9. It is contended by Counsel, that the meaning of the words "within the period of validity" is 5-1/2 months as contemplated under the agreement. This contention, in my view, is not valid. The reading of Section 138 of the Act would clearly show that the period of its validity cannot be fixed by the parties concerned as held by the Kerala high Court in Kesavan Thankappan v. State of Kerala. I (1999) BC 265 = 1 (1999) CCR 645 = (1999) Crl. I.J. 714.

10. The relevant observation made by the Kerala high Court is as follows (page 578) :

"Though the above arguments advanced by Counsel for the appellant are very attractive, they cannot be accepted on the face of Clause (a) of the proviso to Section 158 of the Negotiable Instruments Act which reads as follows :

"Provided that nothing contained in this section shall apply unless-

(a) The cheque has been presented to the Bank within the period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier".