Om Parkash v. Gurcharan Singh .

V.S Aggarwal, J.:— Tis is a petition filed by Om Parkash (hereinafter described as ‘the petitioner’) seeking quashing of the complaint and the subsequent summoning order regarding the petitioner as an accused.

2. The relevant facts are that respondent-Gurcharan Singh filed a criminal complaint against the petitioner with respect to the offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘the Act’). It was contended that petitioner had issued a cheque dated 17.5.1993 for Rs. 28,000/- to the respondent against part payment of the amount. The respondent presented the said cheque to his banker (State Bank of India, Naraingarh). It was dishonoured by the banker of the petitioner i.e State Bank of Patiala, Ropar vide endorsement dated 22.11.1993 The banker of the respondent informed him regarding dishonouring of the cheque on 24.11.1993 The respondent issued a notice dated 6.12.1993 with a direction to remit the amount of the cheque. Despite the said notice, the payment had not been made. On these broad facts, complaint with respect to Section 138 of the Act was filed. The learned Additional Chief Judicial Magistrate, Ambala after recording the preliminary evidence summoned the petitioner as an accused with respect to the abovesaid offence.

3. The petitioner seeks quashing of the complaint and the summoning order alleging that respondent had submitted the cheque to the State Bank of India, Naraingarh on 16.11.1993 The banker of the respondent sent the cheque to State Bank of Patiala, Ropar on 22.11.1993 and was dishonoured on that date. As per the petitioner, the presenting of the cheque to the banker of the petitioner was done after expiry of six months and consequently, the complaint was not maintainable.

4. Notice of the petition had been issued to the respondent who did not submit any reply and even when the case was listed for arguments, no appearance was put on behalf of the respondent. In these circumstances, the Court did not have the advantage of hearing the submissions of the respondent's counsel.

5. Learned counsel for the petitioner urged that under Section 138 of the Act, the cheque has to be presented to the Bank from where the amount has been drawn. He relied on the fact that expression used is “the bank”. Reliance was further placed on Section 72 of the Act which prescribes that subject to provisions of Section 84, a cheque must, in order to charge the drawer, be presented to the bank upon which it is drawn before the relation between the drawer and the bank has been altered to the prejudice of the drawer. The said submission has merit. Section 138 of the Act reads:—

“138. Dishonour of cheque for insufficiency, etc. of funds in the account. — Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque or with both:

Provided that nothing contained in this section shall apply unless—

(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,

(b) the payee or the holder in due course of the cheque, as the case maybe, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation. — For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.”

6. This provision has been enacted and inserted in the Negotiable Instruments Act by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988. It has been inserted w.e.f 1.4.1989 A new offence in the form of Section 138 has been added. Perusal of the relevant provisions quoted above shows that wherever a cheque is drawn by a person on an account maintained by him with a bank and on presentment the cheque is returned by the Bank because of insufficiency of funds to honour the cheque, rigors of Section 138 of the Act would be drawn. Clause (a) of the proviso of Section 138 further makes the position clear that cheque has to be presented within a period of six months from the date on which it is drawn. But it has to be presented to the Bank. The impression “the” necessarily implies that it had to be presented to the Bank on which it is drawn within the specified period. “The” is always added to denote a particular thing or a person. The specified bank thus denoted would be the Bank on which the cheque is drawn. This is obvious from plain reading of Section 138 of the Act. While the cheque is drawn from a bank but it must be presented to the bank namely the bank on which it is drawn. If it is presented to any other bank and as a result of the banking business, the payment in turn is made then the presentment to the bank would be when it is so done and received by the bank which has to make the payment. The cheque herein was presented at Naraingarh. The said bank was only the agent of the respondent. It had to be presented to the bank of the petitioner. The facts show that presentment to the bank by the petitioner was after six months from the date on which it was drawn because the cheque is dated 17.5.1993 and it was presented and dishonoured on the Bank of the petitioner on 22.11.1993 It was clearly so presented after six months from the date on which it is drawn. It is clarified that there is no assertion by the respondent of there being any fraud or inordinate delay. Therefore, the said facts are not being considered.

7. Once the cheque had been presented after six months from the date on which it is drawn, clearly the complaint was not maintainable.

8. For these reasons, the petition is allowed. The complaint and the order summoning the petitioner as an accused is quashed.

Petition allowed.