A MUTHAIAH Vs. JAYAMMAL

JUDGEMENT

(1.) MR. R. T. Duraisamy, learned counsel for the petitioner, seeking to quash the proceedings under section 138 of the Negotiable Instruments Act, 1881, has raised the following points : (i) The cheque was obtained by the complainants from the accused only out of threat and coercion. Even according to the complaints, an agreement was entered into between the complainants, and the petitioner in the presence of panchayatdars. As per the said agreement, it was decided that in violation of any term, the parties should go to the civil court. Therefore, the act of approaching the criminal court under section 138 of the Negotiable Instruments Act is not valid in law. (ii) The contents of the complaints alleging that the petitioner issued a cheque in discharge of a liability are entirely false. Therefore, the complaints have to be dismissed. (iii) As per the agreement, the petitioner issued the cheque on November 16, 1998, in favour of the complainants but the cheque was presented on May 13, 1999, and whereas in the agreement, it was agreed by the parties that the cheque should be presented within 5 1/2 months from the date of the agreement. Since the cheque was presented after the expiry of 5 1/2 of months in violation of the time fixed in the agreement the complaint is not valid. I heard MR. K. N. Basha, learned counsel for the respondents. On going through the records, I am of the view that none of the grounds would merit consideration at this stage.

(2.) MERELY because the parties agreed to go to the civil court to seek their respective reliefs that would not absolve the right of the complainants to approach the criminal court by filing a private complaint under section 138 of the Negotiable Instruments Act, if the materials are available to establish that the petitioner has committed the offence under section 138 of the Act.Similarly, the contention urged by counsel for the petitioner that the entire complaint is false also cannot be countenanced in view of the fact that whether the averments in the complaint are true or not is not the question to be decided by this court under section 482 of the Criminal Procedure Code.

(3.) THUS, as held by the Kerala High Court, the period of validity can be fixed not by the parties, but by the promulgation of the Governor of the particular State through the Treasury Code by way of regulating the procedures of the banking institutions. Therefore, in the absence of any banking procedures contemplated through promulgation, it cannot be said that 5 1/2 months is the period of validity. So, as per section 138 of the Act, the cheque must be presented within six months. Therefore the words "whichever is earlier" would not be relevant and the same would not help the petitioner/accused.Moreover, according to the complainants, the cheque was dated May 1, 1999, and the same was presented on May 13, 1999 and thereafter, the statutory notice was issued on May 21, 1999, and despite receipt of the notice, no payment was made and therefore, the complaint was laid on June 25, 1999. Therefore, I do not find any merit in this contention also. Under the above circumstances, both the petitions are dismissed, as devoid of merit. Consequently, Crl. M.P. Nos. 5475 and 5476 of 2000 are closed.