Madras High Court

S.Nagarajan vs B.Ramasamy on 17 October, 2022

                                                                              CRL.R.C.No.1005 of 2018

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED : 17.10.2022

                                                           CORAM

                             THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                                Crl.R.C.No.1005 of 2018

                     S.Nagarajan                                                 ... Petitioner

                                                             Vs.

                     B.Ramasamy                                                  ... Respondent

                     PRAYER: Criminal Revision case has been filed under Section 397 r/w
                     401 of Cr.P.C to set aside the order passed in Crl.A.No.89 of 2016 dated
                     06.07.2018 on the file of the learned Principal Sessions Judge, Tiruvallur
                     confirming the order of conviction and sentence imposed on the petitioner
                     passed in S.T.C.No.25 of 2016 dated 23.11.2016 on the file of the learned
                     Judicial Magistrate, Fast Track Court (Magistrate level), Tiruvallur.
                                     For Petitioner       : Mr.T.Ganesan
                                     For Respondent       : Mr.C.K.M.Appaji


                                                           ORDER

This Criminal Revision is directed as against the judgment

passed in Crl.A.No.89 of 2016 dated 06.07.2018 on the file of the learned

Principal Sessions Judge, Tiruvallur, confirming the order passed in

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S.T.C.No.25 of 2016 dated 23.11.2016 on the file of the learned Judicial

Magistrate, Fast Track Court (Magistrate level), Tiruvallur, thereby

convicted the petitioner for the offence under Section 138 of Negotiable

Instruments Act (herein after referred to as “the NI Act”)

2. The petitioner is an accused in the complaint lodged by the

respondent. The case of the respondent is that the petitioner borrowed a

sum of Rs.2,00,000/- with a promise to pay the amount with interest at the

rate of 2% per month. The petitioner also created security in respect of his

property comprised in Survey No.301/1 situated at Door No.11, Ambedkar

Street, Periyar Nagar, Thiruninravur, Thiruvallur District. Again on

05.12.2011, the petitioner borrowed a sum of Rs.1,50,000/- from the

respondent agreeing to repay the same on demand with an interest at the

rate of 2% per month.

3. In order to repay the same, the petitioner was issued two

cheques for a sum of Rs.1,00,000/- each, towards partial discharge of the

borrowed amount. Both the cheques were presented for collection and the

https://www.mhc.tn.gov.in/judis CRL.R.C.No.1005 of 2018

same were returned dishonoured with endorsement funds insufficient.

After causing legal notice, the respondent lodged the present complaint

and same has been taken cognizance in S.T.C.No.25 of 2016 on the file of

the learned Judicial Magistrate, Fast Track Court, Magisterial Level,

Thiruvallur.

4. On the side of the respondent, he examined P.W.1 & P.W.2

and also marked documents in Ex.P.1 to Ex.P.11. On the side of the

petitioner, no one was examined and no document was marked. On a

perusal of the oral and documentary evidence, the trial Court found the

guilt of the petitioner and sentenced him to undergo simple imprisonment

for a period of eight months and awarded compensation of Rs.2,00,000/-

under Section 357(3) of Cr.P.C., in default to undergo simple imprisonment

for a period of two months. Aggrieved by the same, the petitioner

preferred an appeal and the same was also dismissed by confirming the

order passed by the trial Court. Hence, the petitioner filed this present

revision.

5. The learned counsel appearing for the petitioner raised the

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ground that the alleged cheques were issued on 04.12.2014. After

01.04.2012, there was a fresh guideline issued by the Reserve Bank of

India that the cheques are valid up to only three months from the date of

the issuance of the cheque. Accordingly, the respondent ought to have

presented the cheques within a period of three months viz., on or before

03.03.2015. Whereas, the respondent admittedly presented the cheques on

04.03.2015 and the same were returned dishonoured for the reason that

insufficient funds.

5.1. He further submitted that P.W.2, the manager of the bank

categorically deposed that the alleged cheques were ought to have returned

on the ground that the cheques were out-dated instead of insufficient fund.

Further on the date on which the cheques were issued to be calculated for

arriving 90 days. Therefore, the respondent ought to have presented the

cheques on or before 03.03.2015. Without considering the facts and

circumstances, both the Courts below convicted the petitioner. Therefore,

he prayed to allow the present revision.

6. Per contra, the learned counsel appearing for the respondent

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submitted that the only ground raised by the petitioner is that the cheques

were not presented on time. However, the date on which the cheques were

issued should be excluded and therefore, the respondent presented the

cheques well within the time. Therefore, both the Courts below rightly

convicted the petitioner and the interference of this Court does not warrant

in the present case. To support his contention, he relied upon the judgment

reported in (2014) 11 SCC 759 in the case of Rameshchandra Ambalal

Joshi Vs. State of Gujarat and anr and prayed to dismiss the present

revision.

7. Heard Mr.T.Ganesan, learned counsel appearing for the

petitioner and Mr.C.K.M.Appaji, learned counsel appearing for the

respondent.

8. On a perusal of records revealed that the respondent was

examined himself as P.W.1 and the bank manager was examined as P.W.2.

The petitioner borrowed a sum of Rs.2,00,000/- and in order to repay the

same, he issued two cheques dated 04.12.2014. Both the cheques were

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presented for collection on 04.03.2015 and the same were returned

dishonoured for the reason that funds insufficient on the same day, since

the petitioner and the respondent were holding accounts on the same bank.

Therefore, after causing statutory notice, the respondent lodged the present

complaint. The petitioner duly received the statutory notice and failed to

reply by way of reply notice. The petitioner also failed to examine any

witness to rebut the presumption under Section 138 of the NI Act.

9. The only point for consideration is that whether Ex.P4 and

Ex.P.5 were presented within a period of three months or not?

10. Admittedly, the cheques were issued on 04.12.2014. Even at

the time of issuance of cheques the validity for the cheque was three

months. As per the amended guidelines issued by the Reserve Bank of

India, the validity of the cheque was reduced to three months with effect

from 01.04.2012. Therefore, the cheques ought to have been presented for

collection within a period of three months.

11. In the case on hand, Ex.P.4 and Ex.P.5 were presented for

collection on 04.03.2015. On the same day both the cheques were returned

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dishonoured for the reason that funds insufficient. In this regard, the

learned counsel appearing for the respondent relied upon the judgment

reported in (2014) 11 SCC 759 in the case of Rameshchandra Ambalal

Joshi Vs. State of Gujarat and anr in which, the Hon'ble Supreme Court

of India held that limitation period under Section 138 Proviso (a) means

six calendar months as per British Calendar (As per Section 3(35) General

Clauses Act, 1871) “month” does not mean just a period of 30 days as

suggested by the accused and the said period would commence from the

day next when the cheque was drawn and will expire the day prior to the

corresponding day of the corresponding month and in case no such day

falls in the corresponding month, the said period would expire at the end of

the last day of the immediately previous month. The relevant paragraph

reads as follows :-

13. The next question which calls for our answer is the date from which the six months' period would commence. In case of ambiguity with reference to the date of commencement, Section 5 of the General Clauses Act, can be pressed into service and the same reads as follows :-

“9.Commencement and termination of time :- (1)

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In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time, to use the word 'from' and for the purpose of including the last in a series of days or any other period of time, to use the word 'to'.”

12. Thus it is clear that the period would commence from the day

when the cheque was drawn and will expire a day prior to the

corresponding day of the corresponding month and in case no such day

falls in the corresponding month, the said period would expire at the end of

the last day of the immediately previous month. Therefore, the date on

which the cheque was issued has to be excluded and the alleged cheques

viz., Ex.P.4 and Ex.P.5 were presented for collection within a period of

three months. Therefore, the Courts below rightly convicted the petitioner

and this Court finds no infirmity or illegality in the order passed by the

Courts below.

13. Accordingly, the Criminal Revision stands dismissed. The

judgments of conviction and sentence passed by the Courts below are

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hereby confirmed. The trial Court is directed to take steps to secure the

petitioner for the purpose of sentencing him to undergo the remaining

period of conviction. It is also directed that the period of sentence already

undergone by the petitioner, if any, shall be given set off, as required under

Section 428 Cr.P.C.

17.10.2022 Index: Yes/No Internet: Yes/No Speaking/Non-Speaking order

rts

https://www.mhc.tn.gov.in/judis CRL.R.C.No.1005 of 2018

G.K.ILANTHIRAIYAN, J