SHEELAM RAJI REDDY Vs. SAMUDRALA BIXMAIAH

JUDGEMENT

(1.) The short, but important, point for consideration in this petition is whether the period of limitation of six months prescribed by Section 138 of the NEGOTIABLE INSTRUMENTS ACT, 1881 (for short "the Act") begins from the actual date of drawal of the cheque or from the date which is found on the cheque.

(2.) First respondent filed CC No.299 of 2001 on the file of the Court of Judicial First Class Magistrate, Special Mobile, Nalgonda against the petitioner, alleging that on 7-7-2000 the petitioner, accepting the liability of Surender Reddy to discharge the loan due to him from Surender Reddy, had issued two post-dated cheques dated 28-3-2001 for Rs.75,000/- each and requested him to collect the amount by enchashing the cheques, and accordingly on 28-3-2001 he presented the said cheques to the Bank, but those cheques were returned for want of funds on 21-8-2001, and so he issued a statutory notice to the petitioner but the petitioner did not pay the amount, and so the petitioner is liable to be punished under Section 138 of the Act. This petition is filed to quash the proceedings on the ground that the complaint is barred by time because the cheques admittedly issued on 7-7-2000 were in fact presented on 28-3-2001, i.e., beyond six months' period contemplated by Section 138 of the Act.

(3.) The contention of the learned Counsel for the petitioner is that as per Section 138 of the Act, a cheque has to be presented in the Bank within six months from the date of its drawal or within the period of its validity, whichever is earlier, and since admittedly the cheques were drawn and given to the first respondent on 7-7-2000, as per Section 138 of the Act they have to be presented within six months therefrom, and since admittedly they were presented in the Bank on 28-3-2001 beyond six months from 7-7-2000, complaint under Section 138 of the Act is not maintainable. It is his contention that the presumption under Section 118 of the Act also stood rebutted since the first respondent himself admitted that the cheques were in fact drawn on 7-7-2000, but not on 23-8-2000 the date which they bear. Learned Counsel for 1st respondent relying on Shri Ishar Alloy Steels Limited v. Jayaswals Neco Limited, (2001) 3 SCC 609, and Ashok Yeshwant Badave v. Surendra Madhavrao Nighojakar and another, (2001) 3 SCC 726, contended that the period of six months has to be reckoned from the date mentioned on the cheques but not from the date on which they were actually drawn and since the cheques bearing date 28-3-2001 were present in the Bank on the same day, it is clear that the cheque was presented within the period mentioned in Section 138 of the Act and so there are no grounds to quash the complaint against the petitioner. In reply, the contention of the learned Counsel for petitioner is that since the Supreme Court in the two decisions relied on by the learned Counsel for the 1st respondent did not consider whether the presumption under Section 118 stood rebutted or not, those decisions have no application to the facts of this case.