HONOURABLE SRI JUSTICE G.KRISHNA MOHAN REDDY CRL.P.No.999 of 2009 ORDER: This Criminal Petition is filed under Section 482 Cr.P.C. to quash proceedings in C.C.No.823 of 2005, registered for offence punishable under Section 138 of the Negotiable lnstruments Act (for short ‘the Act’), on the file of the Court of the II Additional Judicial First Class Magistrate, Nellore, based on private complaint given by the respondent herein (complainant in the Calendar Case) (for short ‘complainant’), on the ground that the petitioner herein (accused in the Calendar Case) (for short ‘the accused’) did not take any hand loan from the complainant at any point of time and therefore, no cheque was issued by him in favour of the complainant in discharge of any legally enforceable debt. 2. Therefore, the point for consideration is whether there are sufficient grounds to quash the proceedings against the accused? 3. The contention of the learned counsel for the accused is that it is alleged that the amount was borrowed on 29-02-2003 and the cheque was issued on the same day and it was presented before the Bank of the complainant on 28-06-2004 and then it was sent to the Bank of the accused i.e. drawer bank on 29-06-2004 and by virtue of Section 138 of the Act, the date of sending of the cheque to the drawer bank is the criteria and as by 29-06-2004, six months validity period was expired and then, it got no enforceability therefore, the application of Section 138 of the Act does not arise at all. In support of his contention, he has relied upon a decision reported in Shri Ishar Alloy Steels Ltd. Vs. Jayaswals Neco Ltd.[1] 4. The learned Additional Public Prosecutor has opposed the Criminal Petition. 5. Section 138 of the Act reads: 138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid. either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice. to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been, presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course. of the cheque as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.- For the purposes of this section," debt or other liability" means a legally enforceable debt or other liability. By virtue of Section 138-A of the Act, the cheque should have been presented before the concerned drawer bank within a period of six months from the date on which it was issued or within the period of its validity whichever is earlier. 6. In fact, the cheque would have validity only for six months and gets renewed validity by making necessary endorsement by the person who issued it. Further, therefore, when the cheque was presented beyond six months from the date of issue and it was not revalidated, it became invalid. Therefore, Section 138 of the Act cannot be availed here. In that view of the matter, as I find merits in the petition, it deserves to be allowed. 7. In the decision cited, it is observed: “It, however, does not mean that the cheque is always to be presented to the drawer's bank on which the cheque is issued. The payee of the cheque has the option to present the cheque in any bank including the collecting bank where he has his account but to attract the criminal liability of the drawer of the cheque such collecting bank is obliged to present the cheque in the drawee or payee bank on which the cheque is drawn within the period of six months from the date on which it is shown to have been issued. In other words a cheque issued by (A) in favour of (B) drawn in a bank named (C) where the drawer has an account can be presented by the payee to the bank upon which it is drawn i.e. (C) bank within a period of six months or present it to any other bank for collection of the cheque amount provided such other bank including the collecting bank presents the cheque for collection to (C) bank. The non presentation of the cheque to the drawee-bank within the period specified in the Section would absolve the person issuing the cheque of his criminal liability under Section 138 of the Act, who shall otherwise may be liable to pay the cheque amount to the payee in a civil action initiated under the law. A combined reading of Sections 3, 72 and 138 of the Act would leave no doubt in our mind that the law mandates the cheque to be presented at the bank on which it is drawn if the drawer is to be held criminally liable. Such presentation is necessarily to be made within six months at the bank on which the cheque is drawn, whether presented personally or through another bank, namely, the collecting bank of the payee.” This decision is quite applicable here. 8. In the result, the Criminal Petition is allowed quashing the proceedings in C.C.No.823 of 2005 on the file of the Court of the II Additional Judicial First Class Magistrate, Nellore. ____________________________ 30th November 2011 G.KRISHNA MOHAN REDDY,J kvr [1] (2001) 3 S.C.C. 609