A cheque must be presented within six months for a valid complaint under Section 138 of the N.I. Act; statutory presumption applies if no reply to the notice is given.

JUDGMENT :

S.S. Mishra, J.

1. The petitioner is the accused in ICC Case No.47/57 of 2023 filed by the opposite party under Section 138 of the Negotiable Instruments Act (In short “N.I. Act”)

2. The petitioner had issued a cheque of Rs.3,00,000/- in favour of the opposite party and on presentation, the petitioner’s bank have returned the cheque for having insufficient of funds in the account of the petitioner. Therefore, the opposite party is prosecuting the petitioner by filing complaint case.

3. On 03.08.2023, the learned S.D.J.M., Baripada has taken cognizance of the offence under Section 138 of the N.I. Act and issued summon to the petitioner. The petitioner is aggrieved and challenged the said order in the present petition.

4. Mr. Dwibedi, learned counsel appearing for the petitioner submits that the complaint is not maintainable, in view of the fact that the cheque was presented beyond the valid period. He has pointed out from the date chart of the complaint petition that although, the cheque was issued on 03.01.2023, but the cheque was presented on 04.04.2023, which is beyond the valid period. To substantiate his argument, he has relied upon the judgment of the Hon’ble Supreme Court in the case of S.L. Construction & another vs. Alapati Srinivasa Rao & another reported in (2009) 42 OCR (SC)-303. He has emphasized para-19 which reads as under:

“19. For the said purpose a legal fiction was created. The proviso appended to the said provision, however, restricts the application of the main provision by laying down the conditions which are required to be complied with before any order taking cognizance can be passed which are; (i) that the cheque must be presented within a period of six months from the date on which it is drawn; (ii) on the cheque being returned un-paid by the banker, a notice to be issued within thirty days from the date of receipt of information by him from the bank regarding the cheque being unpaid; (iii) in the event, the drawer of the cheque fails to make payment of the said amount of money to be paid within fifteen days from the receipt thereof, a complaint petition can be filed within the period prescribed in terms of Section 142 thereof.”

5. To appreciate the facts of the present case, the following dates and events enumerated herein are relevant.

03.01.2023 - The cheque bearing No.028859 drawn on Union Bank, Pattamundai Branch, Kendrapara for an amount of Rs.3,00,000/- was issued by the petitioner in favour of the opposite party allegedly in lieu of returning the loan amount he had obtained.

04.04.2023 - The cheque was presented to the bankers of the petitioner. However, due to insufficient of funds, the cheque was dishonoured and an intimation slip regarding the same was issued by the bank on 04.04.2023.

06.04.2023 - The opposite party issued a statutory notice under Section 138 of the N.I. Act.

19.04.2023 - The petitioner received legal notice, but did not reply to the same.

12.05.2023 - The opposite party filed the complaint case before the court of the learned S.D.J.M., Baripada.

6. The dates and events mentioned above are culled-out from the complaint petition. It is an admitted fact that despite receiving the statutory notice under Section- 138 of the N.I. Act, the petitioner has not replied to the same.

7. The only contention of Mr. Dwibedi, learned counsel for the petitioner is that the cheque was presented beyond the valid period, which expired on 03.04.2023 according to him. This contention of learned counsel for the petitioner is found to be wrong for two reasons.

Firstly, the bank has accepted the cheque, as it was presented within the validity period of the cheque and retur