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2008 DIGILAW 359 (KAR)

P. v. Srinivasa Shetty VS Sunil Transport Company

2008-07-09

K.RAMANNA

body2008
JUDGMENT Ramanna, J. This appeal is directed against the judgment and order of acquittal dated 30/7/2005 passed by the learned Civil Judge (Jr.Dn.) & JMFC, Harihar, in CC.No. 799/2004 acquitting the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act. 2. Heard the arguments of the learned Counsel appearing on both sides and perused the documents. 3. The short point that arises for my consideration and decision is whether the appellant/complainant presented the cheque for encashment within six months from the date which is written on the cheque? If so, whether the order of acquittal passed by the trial Court is perverse, incorrect or illegal? 4. It is seen that the appellant has filed the complaint through his power of attorney holder. The appellant/company was running a petrol bunk dealing with the business of supply of petrol and diesel. The appellant had supplied petrol and diesel to the respondent to the tune of Rs.6,61,630/- and the cheque Ex.P.2 drawn on State Bank of India, Harihar Branch, bearing No. 0162016 for Rs. 2 lakhs came to be issued by the respondent to the appellant on 25/11/2003. Of course, the appellant has presented the said cheque for encashment on 24/5/2004 i.e., on the last date of expiry of six months through his Banker Davanagere Harihar Urban Co-operative Bank Ltd., Harihar Branch for collection but the said cheque came to be returned with Bank endorsement EX.P. 5 dated 26/5/2004 stating that the said cheque “exceeds arrangement”. Therefore, the appellant herein after complying the statutory provisions of issuing demand notice to the accused/respondent filed a complaint against the respondent for an offence punishable under Section 138 of the Negotiable Instruments Act. So, on behalf of the appellant the power of attorney holder as well as the Manager of Davanagere Harihar Urban Co-operative Bank, Harihar Branch, the officer of the SBI, Harihar Branch were examined as P.Ws. 1 to 3 and got marked documents Exs.P. 1 to 10. The trial Court after recording the statement of the accused Under Section 313 Cr.P.C. acquitted the accused of the charges levelled against him that the cheque in question has been presented for encashment after the expiry of six months from the date written on the cheque and thus, further held that the same would not attract provisions of Section 138 of the Negotiable Instruments Act. Hence, this appeal. 5. Hence, this appeal. 5. It is argued by the learned Counsel for the appellant that the cheque/Ex.P.2 is dated 25/11/2003 and it was presented on 24/5/2004 to its Banker for encashment. Thus, the cheque has been presented for encashment within 6 months from the date which is written on the cheque and hence, the cheque has been presented for encashment within the validity period and the said chque came to be dishonoured on the ground that it “exceeds arrangement” but the tiral Court without properly reading the provisions of Section 138 of the N.I.Act came to the wrong conclusion that the cheque in question was not presented to the drawee Bank within six months and the same is totally incorrect, perverse and illegal. Therefore, it is prayed that the judgment and order of acquittal passed by the trial Court is liable to be set aside and the appeal is to be allowed by convicting the respondent for the aforesaid offence. 6. On the other hand, learned Counsel for the respondent submitted that the trial Court has rightly acquitted the respondent for the charges levelled against him on the ground that the cheque Ex.P.2 has not been presented for encashment within six months i.e., within the validity period. In the instant case, though cheque was presented by the appellant/complainant to its Banker for collection on 24/5/2004 the same reached to the drawee Bank on 25/5/2004, by that time six months time was expired and the cheque Ex.P.2 has lost its validity. Therefore, the trial Court is right in acquitting the respondent by dismissing the complaint. It is further submitted that limitation of six months period be reckoned from the date on which the cheque was drawn. If the date mentioned in the cheque is taken as 25/11/2003, the last date for presentation of the cheque is 24/5/2004. Therefore, the cheque in question i.e. Ex.P.2 had not reached the drawee Bank i.e. SBI, Harihar Branch, within the period of its validity. Therefore, even if the endorsement issued by the Banker discloses that it “exceeds arrangement”, it is not a ground to entertain the complaint. Therefore, the appeal is liable to be dismissed. 7. In support of his contention, learned Counsel for the appellant relied on a decision of the Supreme Court in case of SHRI ISHAR ALLOYS STEELS LTD. Vs. JAYASWALS NECO LTD., 2001 Crl.LJ. Therefore, the appeal is liable to be dismissed. 7. In support of his contention, learned Counsel for the appellant relied on a decision of the Supreme Court in case of SHRI ISHAR ALLOYS STEELS LTD. Vs. JAYASWALS NECO LTD., 2001 Crl.LJ. 1250, wherein, it has been held thus: “The payee of the cheque has the option to present the cheque in any Bank including the collecting Bank where he has his account but to attract the criminal liability of the drawer of the cheque such collecting bank is obliged, to present the cheque in the drawee or payee Bank on which the cheque is drawn within the period of six months from the date on which it is shown to have been issued.” 8. I have carefully examined the materials placed on record by both parties. The dispute is with regard to the fact that whether the cheque Ex.P.2 was received by the drawee Bank within six months from the date mentioned in the cheque or not. No doubt the appellant has presented the cheque to its Banker for encashment on 24th May, 2004. But the said cheque reached the drawee Bank on 25th May, 2004 i.e., after expiry of six months. Therefore, the cheque in question has not reached the drawee Bank for collection within six months from the date mentioned in the cheque. Thus, as per the decisions referred to by the Apex Court, since the appellant who is the holder of the cheque has not presented the cheque to the drawee Bank for encashment within six months, the dishonour of the cheque if any would not attract the provisions of the Negotiable Instruments Act and thus, the accused/respondent cannot be convicted for the offence punishable under Section 138 of the Act. Therefore, the trial Court is right in acquitting the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act and there is no incorrectness or illegality in the same. 9. Therefore, the trial Court is right in acquitting the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act and there is no incorrectness or illegality in the same. 9. It is observed that though the cheque has been presented by the appellant before its Banker on 24/5/2004 it appears that the cheque has not been sent by his Banker on the same day for collection to the drawee Bank i.e., SBI at Harihar Branch and because of the fault on the part of the appellant’s Banker i.e., delay in sending the cheque for clearance to the drawee Bank, the appellant has lost his case. Therefore, it seems that the Bank of the appellant has failed to discharge its part of the duty and because of the negligence on the part of the Bank, the appellant has lost the case before the trial Court and also before this Court. Therefore, liberty is given to the appellant to proceed against its Banker if the same is permissible under law. 10. Viewed from any angle, I do not find any good reasons to entertain this appeal. Ultimately, the appeal fails and is accordingly dismissed.