HARIKISHAN JAGANNATH BAHETI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) - This application is filed by the original complainant against the order dated 18. 9. 1993 by the learned Judicial Magistrate, First Class, Pathri, acquitting the respondent No. 2 of offence punishable under Section 138 of the Negotiable Instruments act, 1881.

(2.) THE learned Magistrate on examining the evidence of the complainant recorded his finding that the cheque dated 21. 4. 1990 was not presented for withdrawal within a period of six months from the date of handing it over to the complainant by the accused. Therefore, the accused was acquitted for want of fulfillment of Clause (a) to proviso to Section 138 of the Negotiable Instruments Act, 1881 (for short, the Act ).

(3.) THERE is no quarrel that from the evidence of the complainant it is clear that it is not his case that the cheque was actually handed-over to him by the accused on 25. 4. 1990. In his evidence he tried to contend that the amount of loan which he had advanced to the accused was to be repaid within a period of 8 days and on his failure, the accused gave him the cheque. The evidence of the complainant is, therefore, clear that even if the case of the complainant is considered from either of these two circumstances it cannot be said that the complainant has fulfilled the conditions of Clause (a)to proviso to Section 138 of the Act. The learned Magistrate has, therefore, relied on the decision which postulates that a post-dated cheque for the purpose of Clause (a) to proviso to Section 138 of the Act has to be treated to have been drawn on the date when it is delivered to the payee and not to be treated as given on the date it bears and, therefore, prosecution under Section 138 in respect of cheque drawn and delivered and presented beyond six months is liable to be quashed. As stated above, the first part of the prosecution version is silent. It postulates that the cheque is a postdated cheque. Secondly, the evidence is clear that the cheque was handed over to the complainant within 8 days on failure of the accused to pay the loan. Therefore, If the period of limitation is counted from one week after the payment, still there is non-compliance with Clause (a) to proviso to Section 138 of the Act. In the circumstances I find no reason to interfere with the impugned order. Therefore, the petitioner is not entitled to seek leave to appeal against the order of acquittal. The application is rejected. Rule is discharged. Rule discharged.