Gujarat High Court
Shiv Siddhi Corporation Through Siddhi ... vs State Of Gujarat on 7 December, 2018
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/15271/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 15271 of 2018
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SHIV SIDDHI CORPORATION THROUGH SIDDHI INFRABUILD PVT. LTD.
THROUGH KALPESH ATMARAM PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR PARTHIV B SHAH(2678) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 2
MS JIRGA JHAVERI, ADDL. PUBLIC PROSECUTOR(2) for the
RESPONDENT(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 07/12/2018
ORAL ORDER
1.Following are the prayers sought for in this petition preferred under Section 482 of the Code of Criminal Procedure:
"8...
(A) YOUR LORDSHIPS be pleased to call for the record and proceedings of Criminal Case No.52541 of 2017 from the Court of Ld.MEtropolitan Magistrate, Ahmedabad and after perusing the same be pleased to quash the impugned complaint, in the interest of justice;
(B) YOUR LORDSHIPS be pleased to stay the further proceeding in pursuance of Criminal Case No.52541 of 2017 pending in the Court of Ld.Metropolitan Magistrate, Ahmedabad, pending the Page 1 of 9 R/CR.MA/15271/2018 ORDER admission, hearing and final disposal of this petition;
(C) YOUR LORDSHIPS be pleased to grant such other and further relief (s) as may be deemed fit in the interest of justice;"
2.Brief facts leading to this petition and issues, factual as well as legal raised in this petition were already at large before this Court between the very parties in Criminal Misc. Application No.15269 of 2018 in connection with another cheque which has been dishonourd and where from complaint under Section 138 of the Negotiable Instruments Act is preferred therefore, without reiterating those reasons, findings and observations in this petition, they shall be construed as the part of this order.
3.Over and above the other aspects discussed in the above referred matter being Criminal Misc. Application No.15269 of 2018, one of the grounds which has been raised by the Page 2 of 9 R/CR.MA/15271/2018 ORDER present applicant in this application is of presentation of the cheque beyond the period of validity.
3.1 It is urged that the cheque dated 15.01.2017, was as per the printed endorsement, valid only for three months. The cheque had been presented in the month of May, 2017 and mandatory legal notice has also been given subsequently in the month of May, 2017 before initiation of the prosecution under Section 138 of the N.I.Act.
4.Learned advocate, Mr.P.B.Shah appearing for the applicant has vehemently urged that in case of ANIL VASUDEV RAJGOR VS. STATE OF GUJARAT, reported in 2017 (0) AIJELHC 237432 had been quite categorical about the nonpresentation of the cheuqe to the drawing Bank within the period specified in the instrument itself. He has sought to rely upon the findings of the Court paragraph Nos.12 Page 3 of 9 R/CR.MA/15271/2018 ORDER and 13 which would be profitably required to be reproduced:
"12.From the above proviso, it is clear that the provisions of Section 138 of the Negotiable Instruments Act are enacted taking into consideration the currency of cheques for a period of six months from the date of issue or the reduced period of validity, whichever is earlier. Therefore, this provision of the Negotiable Instruments Act contemplates cheque with lesser period of validity than six months, which is the general banking practice and stipulates that the cheque should be presented for encashment either within the period of six months or within the period of validity of the cheque, whichever is earlier. Hence, a cheque, which is issued with the reduced validity period, has to be presented for encashment within the expiry of that period so as to attract the provisions of Section 138 of the Negotiable Instruments Act. Indisputably, in the case on hand, the cheque was presented by the complainant for encashment after the expiry of currency of three months and in such circumstances, the provisions of Section 138 of the Negotiable Instruments Act are not attracted in this case in view of Clause (a) of the proviso to Section 138 of Page 4 of 9 R/CR.MA/15271/2018 ORDER the Negotiable Instruments Act.
13.The Supreme Court, in the case of Shri Ishar Alloys Steels Ltd vs. Jayaswals NECO Ltd.(AIR 2001 SC 1161), observed in para 9 as under:
"9.It, however, does not mean that the cheque is always to be presented to the drawer's bank on which the cheque is issued. 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 of 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. In other words a cheque issued by (A) in favour of (B)drawn in a bank named (C)where the drawer has an account can be presented by the payee to the bank upon which it is drawn i.e. (C)bank within a period of six months or present it to any other bank for collection of the cheuqe amount provided such other bank including the collecting bank presents the cheque for collection to the bank(C) bank. The non presentation of the cheque to the drawee bank within the period specified in the Section would absolve the person Page 5 of 9 R/CR.MA/15271/2018 ORDER issuing the cheque of his criminal liability under Section 138 of the Act, who shall otherwise may be liable to pay the cheque amount to the payee in a civil action initiated under the law. A combined reading of Section 2, 72 and 138 of the Act would leave no doubt in our mind that the law mandates the cheque 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 eb made within six months at the bank on which the cheque is drawn, whether presented personally or though another bank, namely, the collecting bank of the payee."
5. Worthwhile it would be to refer to the decision of SHRI ISHAR ALLOYS STEELS LTD. VS. JAYASWALS NECO LTD., reported in AIR 2001 SC 1161 where the cheque was not presented before the drawer's bank within the stipulated period of six months, therefore, the Apex Court held that the Criminal Court had no jurisdiction to issue the process against the appellantaccused. It also held and observed thus. "A combined reading of Sections 2, 72 and 138 of the Act would leave Page 6 of 9 R/CR.MA/15271/2018 ORDER no doubt in our mind that the law mandates the cheque 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 cheque is drawn, whether presented personally or through another Bank, namely, the collecting Bank of the payee."
6. According to the facts of the instant case, validity of the instrument itself is specified to be three months.
6.1 It is to be noticed from the tenor of the complaint and also from the mandatory notice issued as contemplated under the law that the cheuque had been presented within the time of validity i.e. on 07.03.2017 by the complainant and the same had been returned with an endorsement "insufficient fund". There is a categorical averment that soon after the receipt of such memorandum Page 7 of 9 R/CR.MA/15271/2018 ORDER from the Bank, the complainant had contacted the present petitioner, who had requested to present it after he made an arrangement in the Bank and therefore, he has presented the same on 24.05.2017 at the instant which had returned with the endorsement "account closed".
7. The law on the subject is quite clear as has been laid down by the Apex Court that any cheque, which is the negotiable instrument can be presented as many times as it can be, however, it is to be presented within the period of validity. In the instant case, the first time when presented, it was within the period of validity and later as stated in the notice at the instance of the respondent, the same had been presented beyond the period.
8. The decision which is sought to be relied upon would need to be applied to the facts to be adduced before the trial Court. The cheque was already presented well within the time. With regard to the issue of its Page 8 of 9 R/CR.MA/15271/2018 ORDER second presentation whether it was at the instance of the present applicant that the complainant had waited and whether there were other reasons for this late presentation are the issues to be raised and determined by the Trial Court. There are largely and essentially the issues of facts, to be determined by the Competent trial Court and not to be gone into in the petition under Section 482 of the Code of Criminal, the decision in case of Hmt Watches Ltd vs. M.A.Abida and another, reported in (2015) 11 SCC 776 is very clear on this.
9. Keeping this issue open for the petitioner to agitate and the trial Court to closely examine and adjudicate, if deemed appropriate, as a preliminary issue, application is not entertained and stands disposed of. Interim relief, if any, stands vacated. Direct Service is permitted.
(MS SONIA GOKANI, J) M.M.MIRZA Page 9 of 9