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2023 Supreme(Online)(KER) 44124
HIGH COURT OF KERALA
THE PROPRIETOR – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC 8842/2019
Key Points: - The offence under Section 138 is not attracted if the cheque is presented after the validity period (3 months) as per the court’s interpretation of the proviso to Section 138(a) (!) (!) . - The cheque in question was presented after the 3 months validity period, leading to the conclusion that the dishonour as an outdated instrument does not attract Section 138 (!) (!) . - The Crl.M.C. 8842/2019 is allowed and all further proceedings in CC 1499/2018 are quashed, resulting in dismissal of the case on this basis (!) . - The petitioner's contention regarding the instrument being outdated/stale is accepted (!) . - The case originated from a complaint by the 2nd respondent under Section 138 of the Negotiable Instruments Act (!) . - The 2nd respondent did not enter appearance despite service of notice (!) . - The relevant statutory text quoted is the first proviso to Section 138(a) about six months or its validity period (!) . - The RBI-fixed validity period of cheques is three months [implied in p_3 and p_16]. - The court explicitly states that presenting after the validity period and dishonour as an outdated instrument do not attract Section 138 (!) . - The order states that the Crl.M.C. is allowed and proceedings are quashed (!) .
How to determine if a cheque presented after its validity period can attract liability under Section 138 of the Negotiable Instruments Act?
What is the effect of presenting a cheque after the three months validity period on the applicability of Section 138, according to the judge's reasoning?
What are the consequences of the complaint not entering appearance on the court's handling of the case under Crim.M.C 8842/2019?
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN TUESDAY, THE 14TH DAY OF FEBRUARY 2023 / 25TH MAGHA, 1944 CRL.MC NO. 8842 OF 2019 AGAINST THE ORDER/JUDGMENT CC 1499/2018 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, TRIPUNITHURA PETITIONER/ACCUSED THE PROPRIETOR M/S. RESMI GAS AGENCY, THEVARAKKAVU TEMPLE ROAD, THRIPUNITHURA-682 301.
BY ADVS.
JOSE KURIAKOSE (VILANGATTIL)
SRI.BIJO FRANCIS RESPONDENTS/STATE/COMPLAINANT
1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.
2 XEVI VARGHESE NELLUKUNNATH HOUSE, KUREEKAD P.O., CHOTTANIKARA, ERNAKULAM DISTRICT, PIN-682 305.
OTHER PRESENT:
SR.PP.RENJITH GEORGE THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14.02.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
O R D E R
Dated this the 14th day of February, 2023 The petitioner is the accused in C.C.No.1499 of 2018 on the files of the Judicial First Class Magistrate Court, Thripunithura. The case originated on a complaint filed by the 2nd respondent against the petitioner, alleging commission of the offence under Section 138 of the Negotiable Instruments Act.
2. The challenge raised in this Crl.M.C. is based on the reason for dishonour, viz; ‘instrument outdated/stale’, which cannot constitute an offence under Section 138 of the Negotiable Instruments Act.
3. Learned counsel for the petitioner contended that, even going by the averments in the complaint, the cheque dated 10.04.2018 was presented at the Bank only on 09.07.2018. The offence under Section 138 will be attracted only if the cheque is presented within 6 months from the date on which it is drawn or within the period of its validity, whichever is earlier. The Reserve Bank has fixed the period of validity of cheques as 3 months. As the cheque was presented after the validity period, the offence under Section 138 is not attracted.
4. Despite service of notice, the 2nd respondent has not entered appearance.
5. I find the petitioner’s contention to be well founded. The 1st proviso to Section 138(a) reads as under;
“138(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.”
Going by the above provision, the offence will not be attracted, if the cheque is presented after the validity period. Here, the cheque was admittedly presented after the 3 months validity period. The dishonour of a cheque as an outdated instrument/stale will not also attract the offence under Section 138.
For the aforementioned reasons, the Crl.M.C. is allowed. C.C. No.1499 of 2018 on the files of the Judicial First Class Magistrate Court-Thripunithura and all further proceedings in the case are quashed.
Sd/-
V.G.ARUN, JUDGE smm APPENDIX OF CRL.MC 8842/2019 PETITIONER ANNEXURES ANNEXURE A TRUE COY OF THE COMPLAINT IN C.C.NO.1499/2018 FILED BY THE PETITIONER.
ANNEXURE B TRUE COPY OF THE PETITION OF OBJECTION FILED BY THE PETITIONER.
