CRM No. M-1710 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CRM No. M-1710 of 2010 Date of Decision : September 26, 2011 Amrinderpal Singh .... PETITIONER Vs. Kawalpreet Kaur ..... RESPONDENT CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH * * * Present : Mr. Bikramjit Arora, Advocate, for the petitioner. Mr. M.S.Dhami, Advocate, for the respondent. * * * AUGUSTINE GEORGE MASIH, J. (ORAL) Challenge in this petition is to the complaint case No. 49 dated 24.11.2009 filed under Section 138 of the Negotiable Instruments Act 1881 (hereinafter referred to as N.I. Act') read with Section 420 IPC (Annexure P-8) on the ground that the Court could not take cognizance of the complaint in the light of Proviso (a) to Section 138 of the N.I. Act. The summoning order, on this basis, could not have been issued by the trial Court, which is dated 30.11.2009 (Annexure P-9). CRM No. M-1710 of 2010 2 It is the contention of the counsel for the petitioner that offence under Section 420 IPC also is not made out as the complainant has already availed of remedy of recovery of the amount due, for which the cheque was issued by the petitioner and there was no intention on the part of the petitioner to cheat the complainant. The facts of the case are that as per the complaint, a cheque was issued by the petitioner in favour of the complainant, which is dated 05.04.2009 as per the complainant but 01.04.2009 as per the petitioner. The said cheque was presented by the complainant in the Punjab National Bank on 08.10.2009. The same was returned by the HDFC-drawee bank on that very date i.e. 08.10.2009 'as unpaid' for the reason that the funds were insufficient and there was small alteration in the instructions, which required full signatures of the drawer. On this basis, a legal notice was served on the petitioner on 26.10.2009 and thereafter, when the amount was not paid by the petitioner, complaint dated 24.11.2009 under Section 138 of the N.I. Act and 420 IPC was filed by the complainant before the trial Court. The trial Court, on the basis of the preliminary evidence led by the complainant, issued summons to the petitioner vide order dated 30.11.2009 under Section 138 N.I. Act only, which has been impugned in the present petition. The sole contention, which has been raised by the counsel for the petitioner at the time of arguments, is that the Court could not take cognizance of the complaint under Section 138 of the N.I. Act as the requirements of the said Section were not fulfilled which mandated presentation of the cheque within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. Even if accepting for the sake of arguments that cheque was drawn on 05.04.2009, on the date of presentation of the said cheque i.e. 08.10.2009, CRM No. M-1710 of 2010 3 the period of six months had already expired and the cheque was not a valid tender. He, accordingly, prays for quashing of the complaint and all consequential proceedings arising therefrom. As regards Section 420 IPC is concerned, he contends that it is purely a civil dispute which has been given a criminal shape as the petitioner had no intention to cheat the complainant rather, he submits that, the cheque was issued as a security and not to discharge his liability. On the other hand, counsel for the respondent submits that the cheque has not been returned on the ground that it was not presented within the period of the validity of the cheque, rather the same has been returned for funds being insufficient. He, on this basis, contends that the cheque was very much valid on the date when the same was presented to the bank and, therefore, the plea of the petitioner cannot be accepted. He could not dispute the fact that a suit for recovery has already been initiated by the complainant against the petitioner for the amount, which, according to him in the complaint, was given to the petitioner as a friendly loan. I have heard the counsel for the parties and have gone through the records of the case. Section 138 of the N.I. Act reads as follows:- “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 CRM No. M-1710 of 2010 4 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 provisions of this Act, be punished with imprisonment for a term which may be extended to two years, 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 thirty 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.” For exercising the powers by the trial Court for taking cognizance and issuing the summons, the requirement of Section 138 has to be fulfilled, as mandated. The facts depict that the cheque, which was issued in favour of the complainant, had not been presented to a bank CRM No. M-1710 of 2010 5 within a period of six months from the date on which it was drawn. Assuming that the date of issuance of the cheque was 05.04.2009, as asserted by the complainant, the same could have been presented within a period of six months, which had expired when the same was presented on 08.10.2009. The assertion put forth by the counsel for the complainant that the cheque was returned not because of it being beyond the period of six months or it being invalid cannot be accepted in the light of Proviso (a) to Section 138 of the N.I. Act, which fixes a maximum period of six months from the date on which it was drawn. The validity of a cheque is six months and it is not in dispute that the cheque was drawn on 05.04.2009 by the complainant. If that be so, the complaint could not have been taken cognizance of by the trial Court and, therefore, deserves to be quashed as far as Section 138 of the N.I. Act is concerned. Now moving on to the provisions of Section 420 IPC, suffice it to say that the petitioner has not been summoned under Section 420 IPC and the summons were only issued for the offences stated to have been committed by him under Section 138 of the N.I. Act. The complainant already having availed the remedy of the suit for recovery of the amount, which, according to him, was advanced to the petitioner as a friendly loan, the present complaint under Section 138 of the N.I. Act read with Section 420 IPC cannot be sustained and is hereby quashed. The present petition stands allowed in above terms. It goes without saying that the summoning order shall also stand quashed. (AUGUSTINE GEORGE MASIH ) September 26, 2011 JUDGE pj