Harish Kumar vs Executive Officer Municipal Committee Billawar

Rajnesh Oswal, J

The present petition has been filed by the petitioner for quashing the complaint filed by the respondent bearing No. 01/2016 for commission of

offence under section 138 of Negotiable Instrument Act, 1881 and 418 RPC which is pending before the court of learned Judicial Magistrate 1st Class

Billawar (herein to be referred as trial court).

Mr. Sachin Gupta has raised only one ground that the cheque was presented beyond the period of limitation for presentation of cheque. The

necessary facts as emanate from the complaint are that the petitioner herein, in order to discharge his liability in lieu of the contract Bid, issued two

cheques bearing Nos. 5347061 dated 15.04.2015 for Rs. 1,61,000/- and 5347063 dated 31.10.2015 for Rs. 3,11,000/- each drawn from Jammu Central

Co-operative Bank Branch Billawar. It is further averred in the complaint that the respondent herein presented the said cheques for its encashment,

however, the same were returned by the banker of the petitioner with memo dated 19.03.2016 to the banker of the respondent with endorsement

“Insufficient Fundâ€. Thereafter, the respondent issued notice to the petitioner calling upon the petitioner to pay amount due to the respondent in

liew of the dis-honoured cheques within fifteen days from the date of receipt of the said notice. As the petitioner failed to abide by the said notice,

therefore, the respondent filed the complaint for commission of offence under section 138 of Negotiable Instrument Act 1881 and section 418 RPC.

Learned trial court vide order dated 12.05.2016 took the cognizance and issued the process against the petitioner only with regard to cheque bearing

No. 5347063 dated 31.10.2015 for Rs. 3,11,000/-.

Mr. Sachin Gupta, Advocate has reiterated the ground taken in the petition.

Mr. S. S. Nanda, Sr. AAG submits that it is not evident from the record as to when the cheque was presented for encashment by the petitioner.

Heard and perused the record.

A perusal of the cheques in question reveals that the same were presented before the J&K Bank, Billawar on 19.03.2016 as it is evident from the

stamp impressed upon by the banker of the respondent on the reverse side of the cheques.

A perusal of section 138 of Negotiable Instrument Act reveals that it is one of the essential requirements for launching any proceeding under

section 138 of Negotiable Instrument Act that the cheque must be presented for payment within a stipulated period. Earlier the period for presentation

of the cheque was six months beyond the date when the same was drawn, however, the Reserve Bank of India had issued a circular dated

04.11.2011 in exercise of power under section 35-A Banking Regulation Act, 1949 and the period within which the cheque can be presented for

encashment has been reduced from period of six months to period of three months with effect from 01.04.2012. It is evident from the record that the

cheque was presented much beyond the period as stipulated under section 138 of Negotiable Instrument Act. Learned Magistrate too has not taken

note of this fact and has taken cognizance of the complaint in mechanical matter in utter disregard of the law laid down by Hon’ble the Apex

Court in M/s Pepsi Foods Ltd. and another vs. Special Judicial Magistrate and others AIR 1998 SC 128.

So, I am of the considered opinion that both orders of cognizance dated 12.05.2016 passed by learned trial court and proceedings arising out of the

complaint are required to be quashed.

The present petition is, accordingly, disposed of along with connected application(s).