LEENA THOMSON Vs. REENA JUDE THADEVOUS

JUDGEMENT

(1.) The petitioner is accused for the offence punishable under Section 138 of the Negotiable Instruments Act in S.T.No.174 of 2016 on the file of the Judicial First Class Magistrate Court-IV, Kochi, instituted on the basis of a complaint preferred by the first respondent herein.

(2.) The main prayer made by the petitioner is for quashment of all further proceedings taken in pursuance of the impugned Annexure-X complaint. In this regard, the main contention urged by the petitioner is that in terms of the proviso (a) to Section 138 of the Negotiable Instruments Act, the cheque is to be presented to the drawee 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 and further that the Reserve Bank of India in exercise of its enabling powers conferred in that regard by provisions as in 35(A) read with Section 56 of the Banking Regulation Act, 1949 has issued notification No.RBI/2011-12/251, DBOA.AML BC No.47/14.01.00/2011-12 dated 4.11.2011 with effect from 1.4.2012 notifying that the validity period of the cheque will stand reduced to three months. It has been held by the Apex Court in the judgment as in Shri Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd., 2001 3 SCC 609 and Rameshchandra Ambalal Joshi v. State of Gujarat and another, 2014 11 SCC 759 that the time prescribed for presentation of the cheque within the validity period is to be adjudged at the point of time of the presentation of the cheque at the drawee Bank. It is urged that in the instant case, cheque dated 22.1.2016 for Rs.3,60,000/- was sent to the collection Bank on 23.4.2016 and that it was presented before the drawee Bank only on 25.4.2016 and that three months' validity period of the cheque dated 22.1.2016 had expired on 22.4.2016 and therefore, the cheque has been presented before the drawee Bank only after the expiry of its three months validity period. Accordingly, it is argued that the impugned decision taken by the learned Magistrate in having taken cognizance is per se illegal and ultravires. Further it is also pointed out that even going by the case set up by the complainant, there is delay of four days in filing the complaint and that the delay in that regard was not condoned by the learned Magistrate. Application for condonation of delay was not filed before the cognizance was taken and that the learned Magistrate had taken cognizance without examining the issue as to whether there was delay or not and that the decision taken by the learned Magistrate to take cognizance without condoning the delay is ultravires and without jurisdiction. It is also pointed out that an application to condone the delay of 4 days in filing the complaint was later filed by the complainant before the trial court, after a decision was taken by the learned Magistrate to take cognizance of the offence in the complaint and that the said procedure is improper and legally untenable.

(3.) Heard Sri.K.V.Jayadeep Menon, learned counsel appearing for the petitioner/accused, Sri.S.Rajeev, learned counsel appearing for R1/complainant and Sri.Saigi Jacob Palatty, learned prosecutor appearing for R2/State.