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2013 DIGILAW 189 (HP)

Bhupinder Kumar Sharma v. Rattan Singh

2013-03-22

V.K.SHARMA

body2013
JUDGMENT V.K. Sharma, J. 1. The challenge herein in this petition under Section 482 of the Code of Criminal Procedure, 1973 (in short, 'Cr.P.C.') by the petitioner (accused), is against the impugned order of summoning dated 26.6.2012. The precise ground raised for quashing the proceedings is that the cheque in question was apparently issued on 28.5.2011. It being so, its validity was up to 27.11.2011. However, though the cheque was presented by the respondent (complainant) to his bank on 25.11.2011, the same was presented to the drawee bank only on 28.11.2011. In the interregnum the cheque remained under clearance on 26.11.2011, a Saturday and the following day, that is, 27.11.2011, being Sunday, a holiday, it was presented to the drawee bank only on 28.11.2011. The learned Counsel for the complainant submits that Section 25 of the Negotiable Instruments Act, 1881 (in short, 'N.I. Act') as reproduced below, provides that when the day of maturity is a holiday, the instrument shall be deemed to be due on the next preceding business day:-- 25. When day of maturity is a holiday.--When the day on which a promissory note or bill of exchange is at maturity is a public, holiday, the instrument shall be deemed to be due on the next preceding business day. (emphasis supplied) 2. In the present case since 27.11.2011, was a holiday being Sunday, the cheque was admittedly presented for encashment to the drawee bank on the 'next preceding business day', that is, 28.11.2011, a Monday. 3. However the learned Counsel for the accused submits that Section 25 of the N.I. Act refers only to 'a promissory note or bill of exchange' and not to a cheque. However, the submission on the face of it is without any substance, as Section 6 of the N.I. Act, which is extracted below, defines a cheque as a 'bill of exchange':-- 6. "Cheque".--A "cheque" is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form. (emphasis supplied) 4. "Cheque".--A "cheque" is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form. (emphasis supplied) 4. Thus, Section 25 of the N.I. Act also applies to a cheque and in case the day on which the cheque is at maturity, is a public holiday, the instrument shall be deemed to be due on the next preceding business day as in the present case (please see K.S. Subbaraman v. Iyyammal, 1998 Cri. L.J. 4758, Madras High Court). 5. The further contention that the cheque in question was not for any consideration and instead was issued as a 'security cheque' and as such the complaint under Section 138 of the N.I. Act is not maintainable being a matter of evidence, cannot be looked into at this stage. 6. Similarly, any objection regarding non-mention of the date of delivery of the notice served upon the accused under Section 138 of the N.I. Act in the complaint is also a matter to be considered during trial and cannot be gone into at this stage. In view of the above, the petition is dismissed being without any merit. Pending application(s), if any, shall also stand disposed of. Petition dismissed.