IMPORTANT POINT
The court clarified that for criminal liability under Section 138, a cheque must be presented to the drawee bank within six months from its date.

JUDGMENT :

This appeal is at the instance of the complainant in CC No.653 of 2002 on the file of Judicial Magistrate of First Class-I, Cherthala, challenging acquittal of the accused, in a complaint filed by him under Section 138 of the Negotiable Instruments Act (N.I.Act for short), as per judgment dated 31/1/2006.

2. The complainant-N.M.Minerals India Private Ltd is a Private Limited Company registered under the Indian Companies Act, represented by its power of attorney holder.

3. The case of the appellant/complainant is that, towards the price of mineral water purchased by the accused from that company, he owed a sum of Rs.34,940/-, and towards discharge of that liability, he issued Ext.P1 cheque dated 23/8/2001 drawn on District Co-operative Bank, Kunnukuzhy Branch, Thiruvananthapuram. When that cheque was sent for collection through his bank i.e. Dhanlaxmi Bank, Cherthala Branch on 20/2/2002, it was returned dishonoured for the reason ‘Payment stopped by the drawer’, as per Ext.P3 dishonour memo dated 25/2/2002. Intimation of dishonour was received by the complainant on 6/3/2002. Thereafter, he sent registered lawyer notice to the accused on 14/3/2002. In spite of receipt of notice on 16/3/2002, the amount was not paid and no reply was sent. Hence, he filed the complaint under Section 138 of the NI Act.

4. On appearance of the accused before the trial court, particulars of offence were read over and explained, to which he pleaded not guilty and claimed to be tried.

5. The power of attorney holder of the complainant was examined as PW1 and Exts.P1 to P10 were marked from the side of the complainant.

6. On closure of evidence of the complainant, the accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating materials brought on record, and pleaded that his two cheque leaves were stolen by somebody, and misusing one of the cheques, a false complaint was filed against him by the complainant. Moreover, there was material alteration in that cheque so as to invalidate the same. But, no defence evidence was adduced by him, to substantiate his case.

7. On appreciating the facts and evidence, and on hearing the rival contentions from either side, the trial court found that the cheque was presented before the drawee bank beyond the period of six months, and so, no criminal liability could have been fastened on the accused. Hence he was acquitted, under Section 138 of the NI Act, against which the complainant has preferred this appeal.

8. Heard learned counsel for the appellant/complainant and learned counsel for the 1st respondent/accused.

9. The only ground under which the trial court acquitted the accused was that, the cheque was presented before the drawee bank, beyond the period of six months. The cheque is dated 23/8/2001. Ext.P3 dishonour memo will show that the cheque was dishonoured on 25.02.2002. So, according to the 1st respondent/accused, the cheque was a stale one.

10. Proviso (a) to Section 138 of the N.I Act reads thus:

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

x x x

(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, whichever is earlier.”

11. The complainant presented the cheque before the collection bank on 20/2/2002 i.e before completion of the period of six months from the date of the cheque. It is no more res-integra that the cheque should be presented before the drawee bank within the period of six months from the date, on which the cheque was drawn.

12. In Shri Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd. [2001 KHC 324], the Hon’ble Apex Court considered the following questions:

(a) What is meant by, “the bank” as mentioned in clause (a) of the proviso to S.138 of the Negotiable Instruments Act, 1881?

(b) Does such bank mean the bank of the drawer of the cheque or covers within its ambit any bank including the collecting bank of the payee of the cheque?

(c) To which bank th