IMPORTANT POINTS
Section 84(2) of the NI Act, the reasonableness of time to be taken for presentation from the date of issue of cheque, shall be determined with due regard to the nature of the instrument, the banking and trade usage and also the facts of each particular case

ORDER :

The review petitioners are the appellants in R.F.A.No.810/2010. We heard the counsel appearing on both sides.

2. In the appeal, the decree for money in favour of the respondent was confirmed rejecting the plea of appellants that the suit was barred by limitation. It was also held that the relevant article in the Limitation Act, 1963, (for short, 'the Act, 1963') that applied to the suit was not Article 19 as contended by the appellants but the Article 35 of the said Act. We laid down the law that the appropriate Article that applies to a suit instituted on a dishonoured cheque is Article 35 and in that process, we followed an unreported decision in Puthenveettil Malathy & ors. v. Kuttilakandy Balakrishnan (A.S.No.436/02) cited by the learned counsel for the respondent. One of the grounds taken in support of review is that the judgment in Malathy's case had been already recalled by one of us (Justice A.Hariprasad) before the judgment under review was passed and therefore it is an error apparent on the face of the record. The submission made is not disputed by the learned counsel for the respondent. As rightly pointed out to us, when the judgment in Malathy's case was as a matter of fact not in force and could not have been followed, reliance on the recalled judgment, no doubt, is an error apparent on the face of the record which is liable to be corrected in a review proceeding.

3. However, after hearing the counsel on either side, we do not find that the error occurred is capable of upsetting our conclusion on the relevance and applicability of Article 35 of the Act, 1963, which we arrived at after detailed discussion and analysis of the relevant provisions of the Act, 1963 and the Negotiable Instruments Act, 1881 (for short, 'the NI Act'). We also notice that judgment in Malathy's case was recalled solely on factual grounds.

4. The counsel for the revision petitioners contended, relying on Commissioner of Income tax, Bombay South, Bombay v. Messrs. Ogale Glass Workds Ltd., Ogale Wadi (AIR 1954 SC 429) and Kedar Nath Mitra v. Dinabandhu Saha (1915 ILR (Calcutta) 1043), that a cheque which is dishonoured is a mere waste paper rendering the instrument itself irrelevant and defunct since the liability of the drawer, if any, thereafter rests exclusively on the revived original debt. The argument is to the effect that Article 35 which stipulates the date of cheque as the starting point of period of limitation cannot therefore govern a suit on a dishonoured cheque. On reading the decisions cited, we find that the said contention is not fully correct and the decisions have no bearing on the facts of this case. They were rendered in a different context dehors the provisions of the Act, 1963 and the NI Act, 1881 which were not relevant for the decision of the said cases.

5. It is next contended that under no circumstance, the present suit could have been laid on the dishonoured cheques since they were not presented to the Banker within the reasonable time stipulated in Section 84 of the NI Act which is essential for maintaining a suit on a dishonored cheque. In this respect, Ramakannan v. Chettiar & Co. (2007(1) LW(Cri) 527), M/s.Cement Agencies v. V.Vijaya Babu (1997(4) Crimes 273) and K.Rajagopal & anr. v. M.Thiagarajan & ors. [(1999)95 Comp.Cases 286], were cited by the learned counsel for the review petitioners. It is also submitted that in order to lay a suit based on a dishonored cheque, the dates of issue of cheque, the presentation and the dishonour must have been essentially averred in the plaint and despite any of these particulars having not been pleaded, this Court erroneously granted a decree, accepting the suit as validly instituted within time. He also contended that all the five blank cheques issued were materially altered with such dates convenient to the respondent so as to take the suit out of the bar of limitation.

6. This argument is also incapable of acceptance since there is a concluded finding on evidence that