PRADEEP KUMAR VIDHYARTHI Vs. STATE OF U P

JUDGEMENT

(1.) This case has been taken up in the revised list. I have heard Sri Samit Gopal, learned Counsel for the applicant. Sri A.K. Singh, who has filed his appearance slip on behalf of opposite party No. 2, is not present, nor has any counter affidavit been filed on his behalf.

(2.) This application has been filed for quashing criminal proceedings under section 138 of the Negotiable Instruments Act, 1881, pending before the Special C.J.M., Kanpur Nagar, in Complaint Case No. 131 of 2001 : Neeraj Chopra v. P.K. Vidyarthi. The application has been pressed on a short point that the cheque was presented before the drawer's bank after the expiry of 6 months from the date on which it was drawn although it was presented before the collecting bank within a period of 6 months. Reliance was placed on a decision of the Apex Court in Shri Ishwar Alloy Steels Ltd. v. Jayaswals Neco Ltd., in support of the proposition that the relevant bank where the cheque should be presented within 6 months, is the drawer's bank and not the collecting bank.

(3.) The facts of the case in question before this Court are that the applicant had given a cheque of Rs. 25.000/- dated 30.6.2000 bearing cheque No. 0288482 to opposite party No. 2, Neeraj Chopra, the complainant. This cheque was presented before the collecting bank, i.e. the Indian Overseas Bank on 30.12.2000, which was the bank in which opposite party No. 2 had his account. However, the cheque was presented before the drawer's bank (Bank of India, Swaroop Nagar Branch, Kanpur) on 2.1.2001, i.e. after the permissible period of 6 months from the date of issue of the cheque. This fact is mentioned in the memo dated 2.1.2001 issued by the Bank of India, Swaroop Nagar Branch, Kanpur, which was sent to the Indian Overseas Bank on 2.1.2001. This fact is also mentioned in paragraph 7 of the affidavit filed in support of the application filed by the applicant before this Court. As no counter-affidavit has been filed, there is no refutation of this allegations in the application. The specific controversy before the Apex Court in the case of Shri Ishwar Allow Steels Ltd. (supra) was whether the period of 6 months when the cheque was to be presented relate to the collecting bank or the drawee bank. In this connection it has been observed in paragraph 9 of the aforesaid ruling that the material bank is the drawee bank because the expression 'the bank' has been used in section 138 (a) of the Act and not 'a bank'. Paragraph 9 of the aforesaid judgment may usefully be extracted as under :-