The presentation of a cheque after the expiry of the statutory period of six months renders it invalid, absolving the drawer of criminal liability under Section 138 of the Negotiable Instruments Act.

M.L. MEHTA, J:

1. This petition under Section 482 CrPC has been preferred by the petitioner for quashing of criminal complaint being CC No. 10261/2003 and the summoning orders dated 28.7.2003, 22.11.2003, 01.04.2004, 29.10.2004, 01.06.2005, 14.9.2005, 03.12.2008, 09.04.2010, 19.05.2010, 20.07.2010, 13.08.2010 and order dated 27.01.2011, whereby notice under Section 251 CrPC was framed against the petitioner by the learned M.M. in above mentioned complaint case filed by the respondent under Section 138, Negotiable Instruments Act (for short the „N.I.Act?).

2. The complaint case was registered at the instance of the respondent wherein it was alleged that the petitioner/accused had borrowed a sum of Rs. 25000/-at 2.5% interest in August, 2002 from the respondent/complainant as a friendly loan. It was alleged that a cheque bearing No. 052104 dated 23.11.2002 for the above mentioned amount drawn on State Bank of Bikaner & Jaipur, Rohtak was issued by the petitioner in favour of the complainant. It was further alleged that the cheque was presented by the complainant to its banker on 10.04.2003 but the same was returned unpaid with the remarks “exceeds arrangements”. It was further stated that on assurance given by the petitioner, the respondent presented the said cheque again on 23.05.2003 but it was returned unpaid. After sending the demand notice which was received by the petitioner, the complaint case was filed by the respondent, wherein the petitioner was summoned and notice was framed against him. Hence, the present petition.

3. The learned counsel for the petitioner has assailed the impugned summoning orders and notice framed under Section 251 CrPC on the short ground that the cheque was presented by the respondent after the expiry of the statutory period of six months for the presentation of the cheque in the bank on which it was drawn by the drawer. Reliance has been placed on Shri Ishar Alloy Steels Ltd. Vs. Jayaswals Neco Ltd., (2001) 3 SCC 609. It has been submitted by the counsel for the petitioner that the cheque was presented by the respondent/complainant with mala fide intention as the petitioner had already repaid the loan amount to him in the month of November, 2002.

4. Per contra, it was the submission of the complainant/respondent that the loan amount was not paid by the petitioner and so he is liable to be tried for the offence under Section 138 of the Act.

5. I have heard learned counsel for the parties and also perused the record.

6. The fact of payment of loan by the petitioner is denied by the respondent/complainant and without any evidence in this regard, this fact cannot be decided by this Court. The main contention of the counsel for the petitioner is that the aforesaid cheque was presented by the respondent/complainant after the expiry of statutory period of six months from the date of its issue. Section 138 of the Negotiable Instruments Act reads as under:

“138. Dishonour of cheque for insufficiency, etc., of funds in the account.--

Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for ["a term which may extend to two year"], or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless-

(a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whiche