IMPORTANT POINT
Where holder of cheque has not presented cheque to drawer bank for encashment within six months, dishonour of cheque if any would not attract provisions of Negotiable Instruments Act.

K. Ramanna, J.—This appeal is directed against the judgment and order of acquittal dated 30.7.2005 by the learned Civil Judge, Junior Division and Judicial Magistrate First Class, Harihar, in C.C. No. 799 of 2004 acquitting the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

2. Heard the arguments of the learned Counsel appearing on both sides and perused the documents.

3. The short point that arises for my consideration and decision is whether the appellant/complainant presented the cheque for encashment within six months from the date which is written on the cheque? If so, whether the order of acquittal passed by the Trial Court is perverse, incorrect or illegal?

4. It is seen that the appellant has filed the complaint through his power of attorney holder. The appellant-Company was running a period bunk dealing with the business of supply of petrol and diesel. The appellant had supplied petrol and diesel to the respondent to the tune of Rs.6,61,630/- and the cheque Ext. P2 drawn on State Bank of India, Harihar Branch, bearing No.0162016 for Rs.2 lacs came to be issued by the respondent to the appellant on 15.11.2003. Of course, the appellant has presented the said cheque for encashment on 24.5.2004 i.e., on the last date of expiry of six months through his Banker Davanagere Harihar Urban Co-operative Bank Limited, Harihar Branch for collection but the said cheque came to be returned with Bank endorsement Ext. P 5, dated 26.5.2004 stating that the said cheque “exceeds arrangement”. Therefore, the appellant herein after complying the statutory provision of issuing demand notice to the accused/respondent filed a complaint against the respondent for an offence punishable under Section 138 of the Negotiable Instruments Act. So, on behalf of the appellant the power of attorney holder as well as the Manager of Devanagere. Harihar Urban Co-operative Bank, Harihar Branch, the Officer of the SBI, Harihar Branch were examined as P.Ws. 1 to 3 and got marked documents-Exts.P1 to P10. The Trial Court after recording the statement of the accused under Section 313 of the Cr.P.C. acquitted the accused of the charges levelled against him that the cheque in question has been presented for encashment after the expiry of six months from the date written on the cheque and thus, further held that the same would not attract provisions of Section 138 of the Negotiable Instruments Act. Hence, this appeal.

5. It is argued by the learned Counsel for the appellant that the cheque/Ext.P.2 is dated 25.11.2003 and it was presented on 24.5.2004 to its Banker for encashment. Thus, the cheque has been presented for encashment within 6 months from the date which is written on the cheque and hence, the cheque has been presented for encashment within the validity period and the said cheque came to be dishonoured on the ground that it “exceeds arrangement” but the Trial Court without properly reading the provisions of Section 138 of the Negotiable Instruments Act, 1881 came to the wrong conclusion that the cheque in question was not presented to the drawee Bank within six months and the same is totally incorrect, perverse and illegal. Therefore, it is prayed that the judgment and order of acquittal passed by the Trial Court is liable to be set aside and the appeal is to be allowed by convicting the respondent for the aforesaid offence.

6. On the other hand, learned Counsel for the respondent submitted that the Trial Court has rightly acquitted the respondent for the charges levelled against him on the ground that the cheque-Ext.P.2 has not been presented for encashment within six months i.e. within the validity period. In the instant case, though cheque was presented by the appellant/complainant to its Banker for collection on 24.5.2004 the same reached to the drawee Bank on 25.5.2004, by that six months time was expired and the cheque-Ext. P. 2 has been lost its validity. Therefore, the Trial Court is rig