A cheque must be presented within its validity period for an offence under Section 138 of the NI Act to apply, and failure to do so renders the complaint inadmissible.

O R D E R

This revision is filed against the order dated

04.07.2024 in CMP No. 2571/2023 on the file of the Judicial First Class Magistrate Court, Sasthamcotta. The revision petitioner is the complainant in the above case and the 1^st respondent is the accused (hereinafter the revision petitioner and the 1^st respondent are mentioned as complainant and the accused). The case of the complainant in brief is as follows :

The accused is a person known to the complainant. He borrowed Rupees 25 Lakh from the complainant on 07.04.2023 and in discharge of said liability, issued a cheque dated 20.04.2023 drawn on the account maintained by the accused at Canara Bank, Thondayadu Branch. On 12.06.2023. the complainant presented the cheque for collection through Kerala Gramin Bank. Bharanikkav Branch, where he maintains account. The cheque was dishonoured for the reason Fund insufficient and returned to the complainant along with dishonour memo dated 13.06.2023. On 27.06.2023, the complainant issued a lawyer's notice at the address of the school in Malappuram District, where the accused was working. The notice was returned with endorsement 'no such addressee residing at Indianoor P.O'. The complainant informed the accused of the matter, and the accused gave his present address and informed the complainant that the cheque would be honoured if presented again. Accordingly, the complainant presented the cheque again on 20.07.2023 through Kerala Gramin Bank Bharanikkav Branch, but it was dishonoured again and returned with endorsement 'Instrument outdated stale'. The complainant again sent a Lawyer's notice to the accused. Though he received the notice, he did not return the money. Hence, the complainant filed this complaint.

2. The learned Magistrate without issuing notice to the 1^st respondent, dismissed the complaint stating that the complaint is barred by limitation. Hence, this revision.

3. Heard

4. This Court perused the impugned order and also the lower court records. The relevant portion of the order, by which the complaint is dismissed under Sec.203 of the Cr.P.C. is extracted hereunder :

“4. The reason for dishonour of cheque in this case is instrument out dated/stale, which will not attract offence under Section 138 NI Act. Learned Counsel for the complaint argued that the cheque was presented for encashment on 20.05.2023 and the Bank committed an error in dishonouring the cheque as outdated/stale. According to him, the cheque was presented within the validity period. Since the learned Counsel took such a strong plea, an inquiry was conducted. The Manager of the Kerala Gramin Bank, Bharanikkav Branch was examined and she deposed that the cheque was presented at her branch on 20.05.2023. Since the Bharanikkav Branch has no CTS facility, it was handed over to Kottarakkara Branch on that date itself. The manager of the drawee bank, Canara Bank, Thondayadu branch, is also examined and he deposed that the cheque was dishonoured on 13.06.2023 for insufficiency of funds and thereafter it was not seen presented again. The learned counsel for the complainant relied on the decision of the Honourable Supreme Court reported as Rameshchandra Ambalal Joshi v. State of Gujarat (2014 (2) KLT 203 (SC) to buttress his contention that the cheque in question was presented within the period of validity. In that case, the date of drawal of cheque was 31.12.2005 and the date of presentation of cheque was 30.06.2006 The Honourable Supreme Court held that the date on which the cheque was drawn ie 31.12.2005 will be excluded and the period of six months will be reckoned from the next day ie 01.01.2006 and the period of six months will expire at the end of the 30th day of June, 2006. The Honourable Supreme Court held that the use of the word 'from" in S.138 (a) requires exclusio