Cheque; Ramakannan Vs. Chettiar & Co. [Madras High Court, 23-11-2006]

Negotiable Instruments Act, 1881 – S. 118, 138 & 139 – Time Barred Cheques – Undated Cheque – Under Section 138 of the Negotiable Instruments Act, as the validity of a cheque is only for 6 months from the date of issuance, the implied authorisation for filling up the cheque should certainly be within the limitation of six months and not more than the period of limitation. As it has been proved that the undated cheque was handed over one year and six months prior to the date of the cheque, the dishonour of the same would not create any criminal liability on the revision petitioner/accused.

Dishonour of Cheque


IN THE HIGH COURT OF MADRAS

S. Tamilvanan, J.

Crl. R.C. No. 1439 of 2004

Decided On: 23.11.2006

Ramakannan Vs. Chettiar and Co.

For Petitioner : R. Sankarasubbu, Adv.

For Respondent : F.M. Iqbal, Adv.

ORDER

S. Tamilvanan, J.

1. This criminal revision is directed against the judgment of conviction and sentence imposed in Criminal Appeal No. 11 of 2004, dated 02.08.2004 confirming the conviction and sentence imposed by its judgment in C.C. No. 5482 of 2000 dated 18.02.2003.

2. The revision petitioner is the accused in the case registered on the complaint given by the respondent herein under Section 138 of the Negotiable Instruments Act. According to the respondent/complainant, towards the business transaction, the revision petitioner/accused had to pay a sum of Rs. 1,14,471/- to the respondent, for a period from 09.05.1998 to 09.09.1998 and towards part payment, the revision petitioner issued a cheque bearing No. 628595 dated 28.03.2000 drawn on Vijaya Bank, Vadapalani Branch, for a sum of Rs. 83,407/- in favour of the respondent/complainant and requested the complainant to present it for collection on 28.03.2000. Accordingly, when the cheque was presented by the respondent herein, through Bank of Rajasthan Limited, N.S.C Bose Road, Chennai, the same was returned by the Vijaya bank on 29.03.2000 with an endorsement, ‘Funds insufficient’ and therefore, the respondent issued a legal notice, the original of Ex.P.4. Though the notice was received by the revision petitioner, he had not chosen to send any reply. Hence, the respondent herein lodged a criminal complaint under Section 138 of the Negotiable Instruments Act.

3. On the side of the respondent/complainant, the complainant himself was examined as P.W.1 apart from examining the Assistant Manager of Vijaya Bank, Vadapalani, as P.W.2 and documents Exs.P.1 to P.8 were also marked. The dishonoured cheque bearing No. 628595 for a sum of Rs. 83,407/- was also marked as Ex.P.3.

4. According to the revision petitioner, the undated cheque was issued by him only as a collateral security on 09.09.1998 and nearly after a lapse of two years, the respondent herein had filled up the cheque with the date 28.03.2000 and misused the same. Therefore, the complaint given by respondent, itself was not legally maintainable.

5. On the side of the revision petitioner/accused, the Managers of Vijaya bank and Bank of Rajasthan were examined as D.W.1 and D.W.2. The certified copy of the statement of accounts obtained from Vijaya Bank was marked as Ex.D.1 and the statement of account obtained from Bank of Rajasthan was marked, as Ex.D.2.

6. Considering the oral and documentary evidence, the trial Court convicted the revision petitioner/accused, under Section 138 of the Negotiable Instruments Act, against which the petitioner preferred appeal before the Additional Sessions Judge, who confirmed the conviction and sentence imposed by the Trial Court and dismissed the appeal, aggrieved by which this criminal revision has been preferred.

7. It is not in dispute that the revision petitioner and the respondent herein were having business dealings. According to the learned Counsel for the revision petitioner, the dishonoured cheque Ex.P.3 was issued only an undated cheque as security for the amount payable by the revision petitioner, as on 09.09.1998, and the amount was also paid, but the cheque was misused by the respondent/complainant.

8. In support of his contention, the learned Counsel for the revision petitioner, drew the attention of this Court to the Bills, Ex.P.2 series, issued by the respondent/complainant, to the revision petitioner, wherein at page-22 of the typed set, Bill No. 782 dated September 4th, 1998, the cheque has been referred as Vijaya bank cheque No. 628595. Similarly, in cash bill No. 798 dated September 9th, 1998, the same has been stated as Vijaya Bank, cheque No. 628595. Further, the respondent/complainant in his evidence, during cross-examination, has clearly admitted that the aforesaid bills issued by the respondent dated 04.09.1998 and 09.09.1998 contains cheque No. 628595. The learned Counsel appearing for the respondent/complainant, has also not disputed the fact that the aforesaid cheque number available in the printed cash bills dated 04.09.1998 and 9.9.1998. The learned Counsel for the petitioner, by handing over the signed cheque, the revision petitioner had authorised the respondent to fill it up and present the same for payment and therefore, he cannot question the same. On the other hand, the learned Counsel appearing for the revision petitioner would contend that as per the Negotiable Instruments Act, a cheque has to be presented within a period of six months. Here in this case, as admitted by the respondent herein, the cheque was handed over on 09.09.1998 itself, but strangely after filled up the date as 28.03.2000, it was presented for payment after one year and six months. Therefore, according to the revision petitioner, the respondent cannot fix the criminal liability on the revision petitioner, after a lapse of one year and six months, after the issuance of the undated cheque.

9. As contended by the learned Counsel for the revision petitioner, Ex.P.3 cheque was not a post dated cheque. On the other hand, it was an undated cheque handed over on 09.09.1998 itself. It is seen that the date on the cheque was not filled up by pen, though the name of payee, amount in figures and words were written by pen. Strangely a rubber date stamp has been used to affix for the date 28.03.1999. Even in the judgments of the trial court, as well as the first appellate court, it has been held that the disputed document is an undated cheque and not a post dated cheque. Therefore, it has to be decided in the revision, as to whether a complaint dated 24.05.2004 under Section 138 of the Negotiable Instruments Act, based on an undated cheque that was handed over by the revision petitioner, on 09.09.1998 would be legally maintainable?

10. In order to enlighten this Court on the legal aspect, the following decisions were cited: