Kerala High Court
N.M.Minerals India Private Ltd vs P.K.Raju on 26 September, 2024
CRL.A NO. 843 OF 2006 1 2024:KER:71854
C.R
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
THURSDAY, THE 26TH DAY OF SEPTEMBER 2024 / 4TH ASWINA, 1946
CRL.A NO. 843 OF 2006
AGAINST THE ORDER/JUDGMENT DATED 31.01.2006 IN CC
NO.653 OF 2002 OF JUDICIAL FIRST CLASS MAGISTRATE-I,
CHERTHALA ARISING OUT OF THE ORDER/JUDGMENT DATED 28.03.2006
IN CRL.L.P NO.209 OF 2006 OF HIGH COURT OF KERALA,ERNAKULAM.
APPELLANT/COMPLAINANT:
N.M.MINERALS INDIA PRIVATE LTD.
MANNUTHY, THRISSUR - REP. BY THE AUTHORISED
OFFICER K.N.GUNASEELAN, KUNTHARASSERIKARAYIL,
VAYALAR P.O., CHERTHALA.
BY ADV SRI.C.K.SAJEEV
RESPONDENTS/ACCUSED AND STATE:
1 P.K.RAJU
P.R.R.A-37 (PAZHAYA ROAD RESIDENTS ASSOCIATION),
MEDICAL COLLEGE P.O.,THIRUVANANTHAPURAM.
2 STATE OF KERALA
REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
STATE BRIEF FOR R1
SMT.R.S.SREEVIDYA
BY ADV PUBLIC PROSECUTOR
PP-SMT.SEENA C.
CRL.A NO. 843 OF 2006 2 2024:KER:71854
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
26.09.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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C.R
JUDGMENT
This appeal is at the instance of the complainant in CC
No.653 of 2002 on the file of Judicial Magistrate of First
Class-I, Cherthala, challenging acquittal of the accused, in a
complaint filed by him under Section 138 of the Negotiable
Instruments Act (N.I.Act for short), as per judgment dated
31/1/2006.
2. The complainant-N.M.Minerals India Private Ltd is a
Private Limited Company registered under the Indian
Companies Act, represented by its power of attorney holder.
3. The case of the appellant/complainant is that, towards
the price of mineral water purchased by the accused from that
company, he owed a sum of Rs.34,940/-, and towards
discharge of that liability, he issued Ext.P1 cheque dated
23/8/2001 drawn on District Co-operative Bank, Kunnukuzhy
Branch, Thiruvananthapuram. When that cheque was sent for
CRL.A NO. 843 OF 2006 4 2024:KER:71854
collection through his bank i.e. Dhanlaxmi Bank, Cherthala
Branch on 20/2/2002, it was returned dishonoured for the
reason 'Payment stopped by the drawer', as per Ext.P3
dishonour memo dated 25/2/2002. Intimation of dishonour was
received by the complainant on 6/3/2002. Thereafter, he sent
registered lawyer notice to the accused on 14/3/2002. In spite
of receipt of notice on 16/3/2002, the amount was not paid and
no reply was sent. Hence, he filed the complaint under Section
138 of the NI Act.
4. On appearance of the accused before the trial court,
particulars of offence were read over and explained, to which
he pleaded not guilty and claimed to be tried.
5. The power of attorney holder of the complainant was
examined as PW1 and Exts.P1 to P10 were marked from the
side of the complainant.
6. On closure of evidence of the complainant, the accused
was questioned under Section 313 of Cr.P.C. He denied all the
CRL.A NO. 843 OF 2006 5 2024:KER:71854
incriminating materials brought on record, and pleaded that his
two cheque leaves were stolen by somebody, and misusing one
of the cheques, a false complaint was filed against him by the
complainant. Moreover, there was material alteration in that
cheque so as to invalidate the same. But, no defence evidence
was adduced by him, to substantiate his case.
7. On appreciating the facts and evidence, and on hearing
the rival contentions from either side, the trial court found that
the cheque was presented before the drawee bank beyond the
period of six months, and so, no criminal liability could have
been fastened on the accused. Hence he was acquitted, under
Section 138 of the NI Act, against which the complainant has
preferred this appeal.
8. Heard learned counsel for the appellant/complainant
and learned counsel for the 1st respondent/accused.
9. The only ground under which the trial court acquitted
the accused was that, the cheque was presented before the
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drawee bank, beyond the period of six months. The cheque is
dated 23/8/2001. Ext.P3 dishonour memo will show that the
cheque was dishonoured on 25.02.2002. So, according to the
1st respondent/accused, the cheque was a stale one.
10. Proviso (a) to Section 138 of the N.I Act reads thus:
"138. Dishonour of cheque for insufficiency, etc of funds
in the accounts.
xxx
(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."
11. The complainant presented the cheque before the
collection bank on 20/2/2002 i.e before completion of the period
of six months from the date of the cheque. It is no more
res-integra that the cheque should be presented before the
drawee bank within the period of six months from the date, on
which the cheque was drawn.
CRL.A NO. 843 OF 2006 7 2024:KER:71854
12. In Shri Ishar Alloy Steels Ltd. v. Jayaswals Neco
Ltd. [2001 KHC 324], the Hon'ble Apex Court considered the
following questions:
(a) What is meant by, "the bank" as mentioned
in clause (a) of the proviso to S.138 of the
Negotiable Instruments Act, 1881?
(b) Does such bank mean the bank of the
drawer of the cheque or covers within its
ambit any bank including the collecting bank
of the payee of the cheque?
(c) To which bank the cheque is to be presented
for the purposes of attracting the penal
provisions of S.138 of the Act?
13. Hon'ble Apex Court answered these questions, in
Paragraphs 9 and 10 of the decision cited above, which read
thus:
"9. The use of the words "a bank" and "the bank" in the
section is an indicator of the intention of the Legislature. The
former is an indirect article and the latter is pre-fixed by a direct
article. If the Legislature intended to have the same meanings for
"a bank" and "the bank", there was no cause or occasion for
CRL.A NO. 843 OF 2006 8 2024:KER:71854
mentioning it distinctly and differently by using two different
articles. It is worth noticing that the word "banker" in S.3 of the Act
is pre-fixed by the indefinite article "a" and the word "bank" where
the cheque is intended to be presented under S.138 is pre-fixed
by the definite article "the". The same section permits a person to
issue a cheque on an account maintained by him with a bank and
makes him liable for criminal prosecution if it is returned by the
bank unpaid. The payment of the cheque is contemplated by the
bank meaning thereby where the person issuing the cheque has
an account. "The" is the word used before nouns, with a
specifying of particularising effect opposed to the indefinite or
generalising force of "a" or "an". It determines what particular
thing is meant; that is, what particular thing we are to assume to
be meant. "The" is always mentioned to denote a particular thing
or a person. "The" would, therefore, refer implicitly to a specified
bank and not to any bank. The bank referred to in clause (a) to
the proviso to S.138 of the Act would mean the drawee-bank on
which the cheque is drawn and not all banks where the cheque is
presented for collection including the bank of the payee, in whose
favour the cheque is issued.
10. 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 or
CRL.A NO. 843 OF 2006 9 2024:KER:71854
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 cheque amount provided such other bank including the
collecting bank presents the cheque for collection to the C bank.
The non presentation of the cheque to the drawee-bank within the
period specified in the section would absolve the person issuing
the cheque of his criminal liability under S.138 of the Act, who
otherwise may be liable to pay the cheque amount to the payee in
a civil action initiated under the law. A combined reading of S.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 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".
14. Relying on Ishar Alloy Steels case cited supra, this
Court in the decision Thomas P.J v. Vijayakumari and others
[2014 (2) KHC 265] held that, presentation of the cheque to "the
Bank" mentioned in the proviso (a) of Section 138 of the N.I Act
CRL.A NO. 843 OF 2006 10 2024:KER:71854
is obviously the drawee bank and not any other bank as the
payee wishes.
15. Learned counsel for the appellant would say that, as
far as Ext.P1 cheque was concerned, time was there till
23/2/2002 for presenting the cheque before the drawee bank,
as the cheque was drawn on 23/8/2001. 23/2/2002 was a
holiday for the bank, due to Bakrid and 24/2/2002 was a
Sunday. In paragraph 9 of the trial court judgment, the holidays
on 23/2/2002 and 24/2/2002 are specifically mentioned. So, the
next working day was on 25/2/2002 and the cheque was
dishonoured on that day.
16. Going by Section 10 of the General Clauses Act,
1897, where, by any Central Act or Regulation made after the
commencement of the General Clauses Act, any act or
proceeding is directed or allowed to be done or taken in any
Court or office on a certain day or within a prescribed period,
then, if the Court or office is closed on that day or the last day of
CRL.A NO. 843 OF 2006 11 2024:KER:71854
the prescribed period, the act or proceeding shall be considered
as done or taken in due time, if it is done or taken on the next
day afterwards, on which the Court or office is open. So if a
person is required to submit a document to a court or office
within a particular period, and if the last day of that period
happens to be a holiday, it can be done on the next day. This
extension applies only if the last day of the period happens to
be a holiday.
17. The appellant presented the cheque before Dhanlaxmi
Bank on 20/2/2002 where he was having an account. That
bank was at Cherthala and the drawee bank was at
Thiruvananthapuram. After receiving the cheque on 20/2/2002,
the collection bank might have forwarded the cheque to the
drawee bank for collection, on that day itself or on the next day.
Even if the cheque had reached the drawee bank on 21/2/2002
or on 22/2/2002, due to intervening holidays on 23/2/2002 and
24/2/2002, it might have been dishonoured only on the next
CRL.A NO. 843 OF 2006 12 2024:KER:71854
working day i.e 25/2/2002.
18. In order to determine the period of six months, from
the date on which the cheque was drawn, the crucial date is
the date on which the cheque was presented before the drawee
bank for encashment. If the cheque was presented before the
drawee bank before expiry of the six months period, the cheque
will not become stale, if at all that cheque was dishonoured on
a day after expiry of the period of six months, from the date on
which the cheque was drawn. Dishonour on a subsequent date
will not affect the validity of the cheque, if it was received before
the drawee bank within the stipulated period. The dishonour
date cannot be treated as the date on which the cheque was
presented before the drawee bank, unless otherwise proved.
19. In the case on hand, the cheque was presented
before the collection bank on 20.02.2002 and from there it was
sent to the drawee bank. Two clear working days were there
for sending the cheque to the drawee bank, and so it might
CRL.A NO. 843 OF 2006 13 2024:KER:71854
have reached the drawee bank on 21.02.2002 or on
22.02.2022. Admittedly, 23.02.2002 and 24.02.2002 were
holidays for the bank. So, in all probability, the cheque might
have been dishonoured only on 25.02.2002. The dishonour of
the cheque on 25.02.2002 doesn't mean that the cheque
reached that bank only on 25.02.2002, in the absence of any
evidence to support.
20. The drawee bank is the competent authority to say
whether the cheque was presented before that bank within the
period of six months or not, so as to treat it as valid or invalid as
the case may be. There was no endorsement whatsoever made
by the drawee bank in the cheque, to show that it was a stale
one. If that cheque was presented before the drawee bank after
the period of six months, it would have been treated as a stale
one, and that fact would have been stated in the dishonour
memo itself. When the complainant presented the cheque
before the collection bank within time, and it was dishonoured
CRL.A NO. 843 OF 2006 14 2024:KER:71854
by the drawee bank stating sole reason 'payment stopped', the
only inference we can draw is that there was no infirmity for that
cheque or any doubt as to its validity. In such circumstances,
the burden to prove it otherwise shifts to the accused. So the
finding of the trial court that the cheque was presented before
the drawee bank after the period of six months from the date of
drawing the cheque, is without any factual foundation.
21. Learned counsel for the 1st respondent would
contend that, there was no transaction whatsoever between
himself and the complainant, and no cheque was ever issued
towards discharge of any legally enforceable debt. According to
him, he lost his two cheque leaves, and he had issued 'stop
payment' to the bank, and also filed a complaint before Police.
It is trite law that an offence under Section 138 of NI Act will be
attracted even if cheque was dishonoured for the reason
payment stopped by the drawer.
22. While cross examining PW1, learned counsel for the
CRL.A NO. 843 OF 2006 15 2024:KER:71854
1st respondent/ accused suggested to him that his two cheque
leaves were stolen on 11/10/2000, and he had filed complaints
before the bank as well as before the police station. Ext.P5
lawyer notice was received by the 1st respondent/accused on
16/3/2002, as seen from Ext.P7 postal acknowledgement card.
If he was aware of the fact that, his two cheque leaves were
stolen on 11/10/2000, and he had made complaints before the
bank as well as before the police station regarding theft of the
cheque leaves, there was no reason for him, for not sending a
reply to the complainant stating the real state of affairs. No
records were called for by the 1st respondent/accused from the
drawee bank to show that even prior to the date of Ext.P1
cheque, he had issued stop payment to that bank. No records
were called for from the drawee bank to show the date, on
which Ext.P1 cheque reached that bank, if he had a case that
the cheque was received before that bank after six months of its
drawing.
CRL.A NO. 843 OF 2006 16 2024:KER:71854
23. Regarding material alteration of the cheque alleged
by the 1st respondent, he had no case that he issued Ext.P1
cheque to the complainant, bearing the date 13/8/2002, which
was subsequently altered by the complainant as 23/8/2001.
So, the finding of the trial court that there was no material
alteration in that cheque is liable to be upheld.
24. Adverting to the facts and circumstances as stated
above, this Court is of the view that, acquittal of the accused
under Section 138 of the NI Act, on the sole ground that the
cheque was presented before the drawee bank beyond the
statutory period of six months is liable to be set aside. The
available facts and circumstances amply prove that, the 1st
respondent issued Ext.P1 cheque to the complainant, towards
the price of mineral water purchased by him, and that cheque
was returned dishonoured for the reason 'payment stopped'.
After complying with all the legal formalities, within the statutory
time frame, he filed complaint against the accused. The
CRL.A NO. 843 OF 2006 17 2024:KER:71854
presumption under Section 139 of the N.I Act also is there in
favour of the complainant, and no evidence whatsoever is
adduced by the 1st respondent/accused to rebut that
presumption. So, the accused is found guilty under Section 138
of NI Act, and he is convicted thereunder.
25. Coming to the sentencing part, the cheque is of the
year 2001, and the amount involved is only Rs.34,940/-. After a
long gap of about 23 years, it is not fair to send him behind the
bars, for a transaction involving only Rs.34,940/-. So, this Court
is inclined to sentence him to undergo simple imprisonment for
one day till rising of the court, and to pay compensation of
Rs.35,000/- to the complainant. In default of payment, he has to
undergo simple imprisonment for three months.
26. The 1st respondent/accused is directed to appear
before the trial court, on or before 25/10/2024 to receive the
sentence, and to pay the compensation amount to the
complainant. If the complainant is absent to receive the
CRL.A NO. 843 OF 2006 18 2024:KER:71854
compensation amount, the accused can deposit that amount
before the trial court. If the accused fails to appear before the
trial court as directed above, to receive the sentence and to pay
the compensation, the trial court has to take steps for executing
the sentence without further delay.
27. Registry to transmit a copy of this judgment along with
the trial court records forthwith, for facilitating the trial court to
execute the sentence as ordered above.
Hence the appeal stands allowed.
Sd/-
SOPHY THOMAS,
JUDGE
ska
