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2004 DIGILAW 364 (KER)

K. T. Lalu v. Kalam

2004-08-05

K.A.ABDUL GAFOOR

body2004
Judgment :- The appellant initiated prosecution against the first respondent for the offence punishable under Section 138 of the Negotiable Instrument Act. The prosecution ended in conviction. In the appeal by the first respondent the conviction was set aside and he was acquitted. Therefore, this appeal. The facts of this case are as follows: 2. Ext.P1 cheque is the cheques in question. It was drawn on 20-7-1993 on Kruvilassery Service Co-operative Bank for an amount of Rs.21,500/=. It was sent for collection through the banker of the complainant on 12-1-1994. It was returned bounced as per Ext.P3 memo dated 24.1.1994 of the drawee bank with the endorsement “refer to drawer”. Obviously, the meaning is that there was no sufficient find in the account. Statutory notice was issued and the same was returned unclaimed. The amount was not paid. Therefore, the prosecution was initiated. 3. The submission of the appellant is that the trial court has rightly appreciating the evidence on record, convicted the first respondent. The sessions Judge ought not have reversed the conviction. The cheques had been duly presented for collection within six months from the date of the cheques. Therefore, there was due presentation within the time. In such circumstances, it cannot be stated that the cheques was presented beyond six months. Had it been so, the drawee bank ought to have in Ext.P3 memo mentioned it as a reason. On the other hand. Ext.P3 memo discloses that the cheques was returned with the endorsement “refer to drawer”. It shows that presentation of the cheques was within the time allowed by the statute. So, the offence had been committed by the first respondent. 4. It is contended by the first respondent/accused that it is imperative that the cheques shall be presented to the bank and that such presentation shall be the presentation allowed by law. A cheques can be validly presented for collection to the drawee bank within six months from the date of the cheques. In this case, the cheques reached the drawee bank only beyond six months. Therefore, the complainant was not called upon to make his account active even with sufficient fund to honour a cheques issued far earlier then six months. So, no offence under Section 138 of the Negotiable Instruments Act is made out in this case. In this case, the cheques reached the drawee bank only beyond six months. Therefore, the complainant was not called upon to make his account active even with sufficient fund to honour a cheques issued far earlier then six months. So, no offence under Section 138 of the Negotiable Instruments Act is made out in this case. In this regard a decision of the apex court reported in Ishar Alloy Steels Ltd. vs. Jayaswants Neco Ltd. (2001 (2) KLT 148) has been relied on. 5. The facts of the case relied on reveal that it was in respect of a cheques dated 21-7-1997 presented for payment on 20-1-1998 within six months. Which reached drawer a bank on 24-1-1998, admittedly, after six months from the date it became payable. Ext.P3 dishonour memo indicated that its date was 24-1-1998. Considering this aspect the apex court held that: “A combined reading of Se.2.72 and 138 of the Act would leave no doubt in our mind that the law mandates the cheques to be presented at the bank on which it is drawn if the drawer is to be held criminally liable. Such presentation is necessarily to be made within six months at the bank on which the cheques is drawn, whether presented personally or through another bank, namely, the collecting bank of the payee. 5. The facts of this case as detailed above are also similar to the one considered by of the Apex Court. Therefore, what is to be examined in this case 15 when did really, Ext.P1 cheque reach the bank of the accused. Ext.P3 is the memo which discloses bouncing of the cheques. It is dated 24-1-1994. It does not disclose that the cheques reached that bank only on 24-1-1994. It only discloses that the bank of the drawer had written Ext.P3 only on 24-1-1994. 6. But Ext.P8(a), the extract of the account maintained by the banker’s of the accused discloses as follows. “B.C.No.554 for Rs.21,500/= returned signed 24-1-1994. This indicates that the bank collection memo with No.554 had reached the bank of the drawer and has been returned on 24-1-1994. This is beyond six months from the date of the cheques. Necessarily, the decision of the apex court squarely applies to the facts of this case. “B.C.No.554 for Rs.21,500/= returned signed 24-1-1994. This indicates that the bank collection memo with No.554 had reached the bank of the drawer and has been returned on 24-1-1994. This is beyond six months from the date of the cheques. Necessarily, the decision of the apex court squarely applies to the facts of this case. As Ext.P1 cheque had reached the bank of the drawer only beyond six months from its date, the appellate court was justified in reversing the conviction and to acquit the accused. In such circumstances, I find no reason for interference. This appeal fails, dismissed.