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TMI Blog2001 (2) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... r the purposes of attracting the penal provisions of Section 138 of the Act?, are the questions to be determined by this Court in this appeal. Punjab and Haryana High Court in the case of Om Prakash v. Gurcharan Singh [1997 (3) Crimes 433] and Gujarat High Court in Arunbhai Nilkantharai Nanavti v. Jayaben Prahladbhai through Her Power of Attorney & Anr. [1999 (3) Crimes 252] have held that a cheque must be presented to the bank on which it is drawn within six months from the date of issue of the cheque. However, Madras High Court in A.B.K. Publications Ltd. & Ors. v. Tamil Nadu Newsprint & Papers Ltd. [1999 (3) Crimes 97] has taken the view that cheque can be presented either in the payee's bank or in the drawer bank and the date of present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Proviso (a) to Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act"), no offence was made out, to be taken cognizance of. The revision was allowed by the Sessions Court on 3rd July, 1999. The respondent filed a further revision in the High Court which was allowed vide the order impugned holding, as noticed earlier, that the cheque can be presented within the six months before the drawer's (payee's) bank or it can be presented before the drawer as well as the payee's bank. Before adverting to the various provisions of law as applicable in the case, it has to be kept in mind that the law relating to Negotiable Instruments is the law of the commercial world which was enacted to facilitate the activities i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the instrument was not discharged. It has, always to be kept in mind that Section 138 of The Act creates an offence and the law relating to the penal provisions has to be interpreted strictly so that non-one can ingeniously or insidiously or guilefully or strategically be prosecuted. It has further to be noticed that to make an offence under Section 138 of the Act, it is mandatory that the cheque is 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. It is the cheque drawn which has to be presented to "the bank" within the period specified therein. When a post-dated cheque is written or drawn, it is only a bill of exchange. The post-dated che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "the bank", there was no cause or occasion for mentioning it distinctly and differently by using two different articles. It is worth noticing that the word "banker" in Section 3 of the Act is pre-fixed by the indefinite article "a" and the word "bank" where the cheque is intended to be presented under Section 138 is pre-fixed by the definite article "the". The same Section permits a person to issue a cheuqe on an account maintained by him with "a bank" and makes him liable for criminal prosecution if it is returned by "the bank" unpaid. The payment of the cheque is contemplated by "the bank" meaning thereby where the person issuing the cheque has an account. "The" is the word used before nouns, with a specifying of particularizing effect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 2, 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. We have perused the judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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