STRUCTURES STEEL Vs. R S LATH EDUCATION TRUST

JUDGEMENT

(1.) Heard the learned ' Counsel for the respective parties. This is an application for special leave to appeal against the order of acquittal passed by the learned Judicial Magistrate, First Class, court No. 3 at Nashik on 20-1-2007 in r. C. C. No. 18 of 2006 filed under section 138 of the Negotiable Instruments Act, 1881 (for short the Act).

(2.) The said complaint was filed on account of dishonour of Cheque No. 167547 dated 25-4-2005 and in the sum of Rs. 48,01,029/- drawn over the Punjab national Bank. The statutory demand notice was issued on 23-11-2005 and it was received by the accused on 25-11 -2005 and as the accused failed to pay the amount of the dishonoured cheque within 15 days, the complaint came to be filed. The complainant had filed affidavit for examination-in-chief at Exh. 18 and he was subjected to cross-examination by the learned Advocate of the accused. The dishonoured cheque was at exh. 22 and the memos of the respective banks was at Exhs. 25 and 44, whereas the statutory notice was at Exh. 26 and the acknowledgement receipts were at Exhs. 27 (1) to 27 (4). The reply to the statutory notice was given on 7-12-2005 at Exh. 28. On examination of the oral and documentary evidence, the trial Court noted that the cheque at Exh. 25 was dated 25-4-2005, drawn by the accused in favour of the complainant and the complainant had deposited the same for the first time on 25-10-2005 and, thus, after the expiry of the period of six months. Witness No. 2 was mr. Bhalchandra Panabh Inamdar, an employee of the Rupee Co-op. Bank where the complainant had deposited the cheque, whereas Witness No. 3 was Mr. Anant vinayak Ganvire, an employee of the Punjab national Bank. He had brought on record the statement of the account of the Dream constructions at Exh. 47 and the register of cheque return at Exh. 48. Witness No. 2 bhalchandra Inamdar admitted in his cross-examination that the subject cheque was sent for clearing by his Bank on 25-10-2005 and Witness No. 3 Anant Ganvire admitted, during his cross-examiantion, that on 25-10-2005 the said cheque was outdated or stale and it did not remain a negotiable instrument, though he admitted that the cheque was dishonoured with remarks "insufficient funds". The trial Court referred to the provisions of section 138 of the Act and it observed that the cheque was required to be presented within six months from the date on which it was drawn or within the period of its validity, whichever was earlier and the period of six months shall be calculated from the date appearing on the cheque and held that the cheque dated 25-4-2005 should have been presented to the drawer bank on or before 25-10-2005. It clearly mean that it was presented beyond the period of its validity and the complainant failed to produce any evidence showing that the cheque was presented in the drawee bank within the validity period of six months. The complaint came to be dismissed mainly on this ground.

(3.) Mr. Kumbhakoni the learned counsel for the applicant - original complainant urged before me that the period of validity of six months in respect of a cheque must be counted from the next day i. e. if the cheque was dated 25-4-2005, the, period of six months ought to be counted from 26-4-2005 and if so counted, the receipt of the cheque by the drawee bank on 25-10-2005 was within the validity period of six months. He referred to the provisions of section 9 of the General clauses Act, 1897 and submitted that the commencement of the validity period ought to be counted by excluding the first day i. e. 25-4-2005. In support of these contentions he has placed reliance on the following decisions:- (a) (Haru Das Gupta Vs. The State of West bengal) , 1972 DGLS 79 : 1972 (1) S. C. C. 639 : A. I. R. 1972 S. C. 1293. (b) (Tarun Prasad Chatterjee Vs. Dinanath sharma) , 1972 DGLS 79 : 1972 (1) S. C. C. 639 : A. I. R. 1972 S. C. 1293. (c) (Saketh India Ltd. and ors. Vs. India securities Ltd. ) , 1993 DGLS 456 : J. T. 1993 (3) S. C. 394 : 1993 (2) SCALE 798 : 1999 (3) S. C. C. 1. (d) (Shri Ishar Alloy Steels Ltd. Vs. Jayaswals neco Ltd. ) , 2001 DGLS 324 : A. I. R. 2001 s. C. 1161 : J. T. 2001 (3) S. C. 114 : 2001 (2) SCALE 173 : 2001 (3) S. C. C. 609. He also placed reliance on the Full bench decision of the Gujarat High Court in the case of (Patel Dinnesh kumar Shivram som das Vs. Patel Keshavlal Mohanlal and ors. ) 5, 2000 (Supp. ) Bom. C. R. 365. It was contended by Mr. Kumbhakoni that the day of the cause of action has to be excluded for counting of period of six months and in the instant case the day of cause of action ought to be treated as 25-4-2005 and the same has to be excluded, meaning thereby that the period of six months of the validity of the cheque ought to be counted from 26-4-2005 and if so counted, deposit of the cheque with the drawee bank on 25-10-2005 would be within the validity period of six months.