The validity of a cheque under Section 138 of the Negotiable Instrument Act is determined by its presentation within 6 months from the date of issuance.

JUDGMENT/ORDER

G.K. Ilanthiraiyan. J. - This petition has been filed to quash the proceedings in S.T.C.No.268 of 2017 pending before the Judicial Magistrate, FastTrack Court (Magisterial Level), Nagercoil, Kanya kumari District dated 23.10.2016, having been taken cognizance for the offence under Section 138 of the Negotiable Instrument Act.

2.The learned counsel appearing for the petitioner would submit that the petitioner is the sole accused. The respondent instituted the proceeding under Section 138 of the Negotiable Instrument Act on the allegation that the petitioner issued a cheque dated 10.03.2017 and when the same was presented for collection through their bank viz., Canara Bank, Ramanputhoor branch on 21.03.2017, the said was dishonored with an endorsement "Overwriting". Subsequently, the petitioner requested the respondent to wait for six months to settle the amount. Even then, the petitioner did not settle the amount as promised by him. Therefore, again, the cheque was represented for collection through the bank on 26.09.2017 and the same was returned for the reason "Instrument out dated stale" on 27.09.2017. Immediately, he sent a statutory notice on 07.10.2017 to the petitioner and the same was also served to the petitioner on 10.10.2017. Even within 15 days, he did not settle the amount and hence, he initiated the proceedings under the negotiable instrument Act.

3.The learned counsel appearing for the respondent would submit that the reason of returning the alleged cheque by their bank was that the instrument out dated stale. He further submitted that the cheque has been issued on 10.03.2017 and the same was initially presented on 21.03.2017 and the same was returned on 22.03.2017 with an endorsement "Overwriting". At that stage, the respondent failed to initiate any proceedings under the Negotiable Instrument Act as against the petitioner. However, thereafter, again the cheque was presented for collection on 26.09.2017 and the same was returned for the reason that instrument out dated stale. Since the cheque was issued on 10.03.2017 and the same was presented after a period of six months, the offence under Section 138 of the Negotiable Instrument Act is not at all made out as against the petitioner. Therefore, she sought for quashment of the proceedings.

4.The learned counsel appearing for the respondent would submit that initially, the cheque was presented on 21.03.2017 and the same was returned on 22.03.2017 for the reason "Overwriting" and only on the request made by the petitioner and also he promised to settle the entire amount, the cheque was not represented within a period of six months and only thereafter, he came to understand that the petitioner did not return the amount as promised by him and as such, on 26.09.2017, it was again represented and the same was returned for the reason that the instrument out dated stale. Therefore, the offence under Section 138 of the Negotiable Instrument Act is squarely made out as against the petitioner and sought for dismissal.

5.Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent and perused the materials available on record.

6.The petitioner is the sole accused and the proceedings under challenge in this petition is that the respondent lodged a complaint under Section 138 of the Negotiable Instrument Act as against the petitioner alleging that the petitioner issued a cheque on 10.03.2017 for a sum of Rs.3 lakhs towards repayment of the loan borrowed by him. The said cheque was initially presented for collection on 21.03.2017 and the same was returned on 22.03.2017 with an endorsement "Overwriting". Again, the cheque was presented only on 26.09.2017 and the same was again returned for the reason that instrument out dated stale. Therefore, admittedly, the cheque was presented after a period of 6 months. In this regard, clause (a) of the offence under Section 138 of the Negotiable Instrument reads as follows:

"138. Dishon