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2009(2) Bankmann 301 (Del.)
DELHI HIGH COURT
Sunil Gaur, J.
Jyoti Transformer and Electrical Pvt.
Ltd. and Anr. —Petitioners
versus
Kesari Oils (P) Ltd. —Respondent
Criminal M.C. No. 1140 of 2007
Decided on 26.11.2008
For the Petitioners:Mr. S. Chakraborty and Mr. B.B. Pradhan, Advocates.
For the Respondent:Mr. Neeraj Suri, Advocate.
IMPORTANT POINT
The question of limitation is a mixed question of fact and law and it cannot be decided under Section 482, Criminal Procedure Code.
Headnote:(i) Negotiable Instruments Act, 1881—Section 138—Three cheques dishonoured—Section 142/141—Charge framed.
(ii) Criminal Procedure Code, 1973—Section 482—Petition for quashing charge and proceedings—Held: Whether cheques were presented to the drawer’s bank within limitation or not is a matter of evidence to be led at the trial—Petition is disposed of.
Sunil Gaur, J.—In criminal complaint case No. 240/1 under Section 138 read with Sections 141 and 142 of Negotiable Instruments Act, vide order dated 29th April, 2005 notice under Section 251 of the Code of Criminal Procedure has been framed by the Trial Court against the petitioner. Quashing of the aforesaid order and the proceedings subsequent thereto has been prayed for in this petition.
2. Both the sides have been heard and the material on record has been perused.
3. On 28th November, 2002, petitioner No. 2 had issued three cheques i.e. two cheques of Rs. 2,00,000 each and third cheque of Rs. 2,33,000 in favour of the respondent and it is stated by the petitioners that the aforesaid cheques had reached petitioner’s Bank on 6th June, 2003 which was beyond the prescribed period of limitation. Reliance has been placed on case of Shri Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd.1, to contend that post-dated cheque becomes a cheque under the Act on the date which is written on the said cheque and the six months period has to be reckoned, for the purpose of Section 138 of the Negotiable Instruments Act from the said date.
4. There is no dispute with the aforesaid proposition. However, the question of limitation raised herein is matter of evidence as there is nothing before this Court to indicate as to when the cheque in question had reached petitioner’s bankers.
5. In view of the above position, this question of limitation being a mixed question of fact and law, is left open to be decided at the appropriate stage at trial.
6. With abovesaid observations, this petition and pending applications, if any, stands disposed of.
Petition disposed of.
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