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K.Vijayakumar v. Christopher Raj, (Madras)(Madurai Bench) : Law Finder Doc Id # 1703930
MADRAS HIGH COURT
Before:- M.Nirmal Kumar, J.
Crl.A.(MD)No.608 of 2007. D/d. 28.02.2020.
K.Vijayakumar – Appellant
Christopher Raj – Respondent
For the Appellant:- Mr.C.K.M.Appaji, Advocate.
For the Respondent:- Mr.S.C.Herold Singh, Advocate.
Dishonour of Cheque – Postdated cheque presented on its date is a valid cheque – Can not be said to be presented beyond limitation.
A. Negotiable Instruments Act, 1881, Sections 118 and 139 – Post Dated cheque – Date inscribed in the cheque is the date of issuance of cheque – Finding of the trial Court that the loan was given on 12.08.2001 and a cheque dated 04.09.2003 was handed over to the said amount on 12.08.2001, was presented three years thereafter, hence, invalid cheque was presented beyond its limitation period is not proper.
B. Negotiable Instruments Act, 1881, Section 138 – Dishonour of Cheque – Limitation – Notice issued beyond limitation as per memos of the respective banks – Another memo of the complainants Bank filed to over come the limitation – No date mentioned – Cannot be considered to be a valid document – Cognizance of the case is bad in law.
[Paras 14 and 15]
Cases Referred :
Anil Kumar Sawhney v. Gulshan Rai (1993) 4 SCC 424
Ashok Yeshwant Badave v. Surendra Madhavrao Nighojakar (2001) 3 SCC 726
M.Nirmal Kumar, J. – The appellant is the complainant, who had filed a private complaint under section 138 of Negotiable Instruments Act, against the respondent / accused, in C.C.No.130 of 2004, before the learned Judicial Magistrate No.1, Kulzhithurai. The trial Court, by Judgment dated 06.09.2007, had acquitted the respondent /accused from the charges. Against which, the above appeal has been filed.
2. When Crl.A(MD)No.608 of 2007 taken up for final hearing on 23.06.2018, there was no representation for the respondent / accused. Thereafter, on hearing the submission of the counsel for the appellant / complainant and on perusal of the records, this Court found that the Judgment of the lower Court to be perverse and hence, set aside the order of acquittal passed by the trial Court, dated 06.09.2007.
3. Since the respondent / accused not appeared before this Court on 23.06.2018, the Registry was directed to list the matter on 06.07.2018, for appearance of the respondent / accused, for imposing sentence.
4. On 06.07.2018, finding that the respondent / accused is not interested in prosecuting the case, this Court convicted the respondent / accused, under section 138 of Negotiable Instruments Act, and sentenced him to pay a fine amount of Rs. 60,000/-, to be treated as compensation and to be paid to the appellant / complainant, in default, sentenced him to under go 6 months S.I., and directed the trial Court to secure the respondent / accused and take further course of action, in accordance with law.
5. The respondent, as appellant, had filed Criminal Appeal Nos.986-987 of 2019, arising out of SLP(Crl.)Nos.7717-7718 of 2018, before the Hon’ble Apex Court. The Hon’ble Apex Court, by its order dated 05.07.2019, finding that the appellant / accused did not appear in the Criminal Appeal, before the High Court, the High Court ought to have issued notice to the accused or the High Court Legal Services Committee to appoint an advocate or the High Court could have taken the assistance of amicus curiae. When the accused was not represented, without appointing any counsel, as amicus curiae, to defend the accused, the High Court ought not to have decided the Criminal Appeal on merits, more so, when the appellant / accused had the benefit of acquittal. Thus, finding error in reversing the acquittal, without affording any opportunity to the accused or by appointing an amicus curiae to argue the matter on his behalf, the appeals filed by the respondent / accused before the Supreme Court was allowed and the Criminal Appeal No.608 of 2007 restored and the case was remitted to this Court to consider the matter afresh.
6. Thereafter, when the appeal was listed before this Court Mr.C.K.M.Appaji, the learned counsel appearing for the appellant / complainant and Mr.S.C.Herold Singh, the learned counsel for the respondent / accused appeared and advanced their arguments.
7. For the sake of clarity, the appellant and respondent are referred as complainant and accused, as per the proceedings in the Trial Court.
8. The brief facts of the case is that the complainant and the accused are friends. On 12.08.2001, the accused had sought for a hand-loan of Rs. 30,000/-, from the complainant and promised that the loan amount would be paid after three years. While receiving the loan amount, the accused had given a cheque, dated 04.09.2003, for the said amount. When the said cheque was presented for payment on 16.01.2004, in his Bank viz., Primary Agricultural Co-operative Bank, Puliyur Salai Branch. The cheque was returned on 19.01.2004, stating for the reason, “insufficient funds”. On 06.02.2004, the same was informed to the complainant. On 12.02.2004, a statutory notice was sent to the accused, which was received on 17.02.2004 and a reply was sent by the accused on 22.02.2004 and the complaint came to be filed on 17.03.2004.
9. The contention of counsel for the appellant / complainant is that in this case, the appellant examined as P.W.1. P.W.2 is the Manager of the Canara Bank, Kuzhuthurai. The complainant and the accused are friends, on 12.08.2001, the accused received a hand-loan of Rs. 30,000/- and for repayment of the loan, he issued a cheque, dated 04.09.2003 of Canara Bank, where he maintained the account. The cheque is marked as Ex.P1. On 16.01.2004, the Cheque/Ex.P1 was deposited in the Bank of the complainant viz., Primary Agricultural Co-operative Bank, Puliyur Salai. The cheque was returned with an endorsement, “insufficient funds” and the Primary Agricultural Co-operative Bank Memo is Ex.P2; Canara Bank Memo is Ex.P3 and Ex.P4 is the another Memo of the Kanyakumari District Central Co-operative Bank. The Statutory Notice, dated 12.02.2004 was issued. The same was received and the acknowledgement is Ex.P6. The accused had sent a reply with false allegation, which is marked as Ex.P7. Thereafter examined the Bank Manager/P.W.2 of the accused Bank, who confirmed about the insufficient funds in the account of the accused, when the cheque Ex.P1 was presented to it.
10. Thus, the complainant had proved that Ex.P1 was issued by the accused in discharge of his legally enforceable debts and the said cheque, when presented for encashment, the same was returned by the Bank of the accused for insufficient funds and proved that the accused had committed the offence. Further submitted that the trial Court had failed to look into these aspects and had gone on a wrong premises stating that the loan was received on 12.08.2001, the cheque, dated 04.09.2003 was handed over on the same day and the cheque, which was received in the year 2001 was presented only in the year 2004 and as per section 138 of Negotiable Instruments Act, the cheque ought to have been presented within 6 months from the date on which it is drawn or within the period of its validity, whichever is earlier. The Lower Court on coming to conclusion that the cheque is only valid for six months from the date of issuance and the cheque had been presented after the period of limitation and hence, acquitted the accused. Further, the concept of post dated cheque is nowhere available. This Court as well the Hon’ble Apex Court had time and again held that the date inscribed in the cheque is the date of issuance of cheque. As per sections 118 and 139 of Negotiable Instruments Act, the presumption is in favour of the complainant. Hence, the learned counsel, submitted that the finding of acquittal is perverse and prayed for appeal to be allowed.
11. The learned counsel for the respondent / accused submitted that the respondent has not received any loan from the accused and he is not liable to repay any legally enforceable debt through Ex.P1. It is admitted that the cheque had been issued on 12.08.2001 and the cheque is dated 04.09.2003, the Bank Return Memo of the accused Bank / Ex.P3, is dated 19.01.2004. The Kanyakumari Central Co-operative Bank return memo viz., Ex.P.4 is dated 21.01.2004. If that being the case, the complaint, which was filed on 17.03.2004 is time barred and there is no reason given, why Ex.P.2 another memo of the Primary Agricultural Co-operative Bank, dated 06.02.2004, had been filed. This Ex.P.2 is a got up document to circumvent and overcome the limitation and delay in filing the complaint. Further, the trial Court coming to a conclusion that the cheque had been issued in the year 2001, which was presented in the year 2004, beyond the period of its validity and it has become stale cheque and hence, rightly acquitted the appellant, which need not be interfered with.
12. The contention of the accused is that the complainant is not known to him and he is a total stranger and he has not issued the cheque to the complainant through plausible explanation by way of cross-examination of the witnesses had probalised his defence.
13. Considering the rival submissions made on either side and the materials available on record, it is seen that this Court is not agreed with the finding of the trial Court that the loan was given on 12.08.2001 and a cheque dated 04.09.2003 was handed over to the said amount on 12.08.2001, was presented three years thereafter. Hence, invalid cheque was presented beyond its limitation period. This finding of the lower Court is not proper.
13.(1). At this point of time, it is relevant to rely upon the judgment of the Apex Court in the case of Anil Kumar Sawhney v. Gulshan Rai reported in 1993 4 SCC 424. The relevant portion of the judgment is extracted hereunder:-
“One of the main ingredients of the offence under Section 138 of the Act is, the return of the cheque by the bank unpaid. Till the time the cheque is returned by the bank unpaid, no offence under Section 138 is made out. A post-dated cheque cannot be presented before the bank and as such the question of its return would not arise. It is only when the postdated cheque becomes a “cheque”, with effect from the date shown on the face of the said cheque, the provisions of Section 138 come into play. The net result is that a postdated cheque remains a bill of exchange till the date written on it. With effect from the date shown on the face of the said cheque it becomes a “cheque” under the Act and the provisions of Section 138(a) would squarely be attracted. In the present case the post-dated cheques were drawn in March 1990 but they became “cheques” in the year 1991 on the dates shown therein. The period of six months, therefore, has to be reckoned from the dates mentioned on the face of the cheques.”
13.(2). The headnote of a judgment of the Hon’ble Supreme Court in the case of Ashok Yeshwant Badave v. Surendra Madhavrao Nighojakar and another reported in (2001) 3 SCC 726, reads as follows:-
“A. Negotiable Instruments Act, 1881-S.138 Proviso (a)-Post-dated cheque-Held, six months’ period has to be calculated for purposes of proviso (a) from the date mentioned on the face of cheque and not from any earlier date when drawer actually gave cheque to drawee-High Court rightly dismissed appellant-drawer’s appeal against issue of process against him-Words and Phrases-“Post-dated cheque”
B. Negotiable Instruments Act, 1881-Ss. 5 and 6 -Post-dated cheque, held, remains a bill of exchange till the date written on the face of it-on that date, it becomes a cheque”
14. As far as this case is concerned, there are two return memos which has been marked as Ex.P.3 and Ex.P.4. Ex.P.3 is the Canara Bank return memo dated 19.01.2004, bankers of the accused and Ex.P.4 is the Kanyakumari District Central Co-operative Bank Nagercoil return memo, dated 21.01.2004, bankers of the complainant. Thus, the cheque was presented on 16.01.2004 was returned by the Canara Bank on 19.01.2004, which was intimated by the Kanyakumari District Central Co-operative Bank Limited, Nagercoil. It is admitted fact that the statutory notice which is Ex.P. 5 had been issued on 12.02.2004. As per the Negotiable Instruments Act, a notice to be given within 15 days from the date of return of the cheque. Considering the fact that Ex.P.4-Bank return Memo dated 21.01.2004, the notice ought to have been issued on 05.02.2004. In this case, notice has been issued only on 12.02.2004. The limitation in filing the complaint has been worked out based on the statutory notice dated 12.02.2004.
15. Further, Ex.P.2 is a letter given by the Puliyoorsalai Primary Agricultural Co-operative Bank Limited, No. Y-128, Mancode Post, Kanyakumari District, in which the entire case hinges for the purpose of limitation. On perusal of Ex.P.2, it is seen that there is no date mentioned in Ex.P.2 and hence, Ex.P.2 cannot be considered to be a valid document. When the cheque dishonoured and returned, the complaint has to be filed within the prescribed period of limitation and the procedures have to be strictly followed.
16. In this case, Ex.P.1 is the cheque which is dated 04.09.2003 and Ex.P.3 is the Canara Bank return memo dated 19.01.2004 and Ex.P.4 is the Kanyakumari District Central Co-operative Bank Limited, Nagercoil return memo dated 21.01.2004 and thus, the statutory notice Ex.P.5 dated 12.02.2004 is issued beyond the period of limitation. Hence taking cognizance of the case is bad in law.
17. In view of the above observations, the Criminal Appeal filed by the appellant / complainant is dismissed.
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