ARUNBHAI NILKANTHRAI NANAVATI Vs. JAYABEN PRAHLADBHAI

JUDGEMENT

(1.) The petitioner, against whom a Criminal Case No. 4061 of 1997 is filed in the Court of the Judicial Magistrate (F.C.) at Bhavnagar, relating to the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'), prays for setting aside the common order dated 15-6-1998 passed rejecting his applications, Ex. 6, 8 and 10, quashing of the complaint, and his discharge etc.

(2.) The question of vital importance that arises for consideration is to which Bank (paying or collecting), the cheque is to be presented within 6 months or during its validity period for legally and validly initiation of criminal action under Sec. 138 of the Act ?

(3.) The facts, necessary for disposal of this application, may, in brief, be stated. The petitioner and opponent No. 1, were having legal transactions. When account was settled, Rs. 1, 00, 000.00 were found due to the opponent No. 1 from the petitioner. The petitioner therefore, in order to fulfil his obligation to pay the amount, issued the cheque for Rs. 1, 00, 000.00 on 24/01/1997. The cheque was drawn on the Branch of Veraval Mercantile Co-operative Bank Ltd., Veraval at Junagadh (for short, 'the paying Bank). The opponent No.1 presented the cheque on 24/07/1997 at Bhavnagar Nagrik Sahakari Bank Ltd., at Bhavnagar (for short, 'the collecting Bank'). On the same day, the collecting Bank sent the cheque to the paying Bank, i.e., drawee at Junagadh. The cheque was received by the paying Bank on 28th July 1997. The che cheque was on the same day returned on the ground that the account was closed. On receipt of the intimation that the cheque was dishonoured, the opponent No.1 on 11/08/1997, gave a notice to the petitioner calling upon him to make the payment. The payment, after the receipt of the notice, was not made. The opponent No. 1, therefore, on 10/09/1997 filed the complaint in the Court of the Chief Judicial Magistrate at Bhavnagar, which was later on assigned to the Judicial Magistrate (F.C.) at Bhavnagar for hearing and disposal in accordance with law. As the complaint was registered, summons against the petitioner was issued. After being served with the summons, the petitioner appeared before the Court of the Judicial Magistrate (F.C.) at Bhavnagar on 9/10/1997. Studying the allegation against him, he filed an application Ex. 6 on 7/10/1997 requesting the Court to discharge him holding that the Court was having no jurisdiction. On 24th December 1997, anotheher application Ex. 8 was also filed by the petitioner requesting the Court to dismiss the complaint and discharge him as the cheque was not presented within 6 months, the period of its validity. Lastly on 21/01/1998, the petitioner presented the third application, Ex. 10 requesting the Court to discharge him under Section 245 (2) of the Criminal Procedure Code because the cheque was presented after the expiry of the period of 6 months. The learned Judicial Magistrate at Bhavnagar heard all the three applications together and by a common order dated 15/06/1998, rejected all the three applications, mainly on the ground that the question of want of jurisdiction and bar of limitation owing to validity period of 6 months could be decided after the evidence was recorded in the case. Against that order, the present application is filed for the aforesaid relief.