દશરથસિંહ રૂપસિંહ રાઠોડ નું લેન્ડમાર્ક જજમેન્ટ

Judgment – Summary 

In his judgment, Hon’ble Thakur J. as he was then, upheld the observations of the co-ordinate bench. He stated that the conditions set forth by Section 138 and elucidated in Bhaskaran case were not be construed to have occurred at the same place. Those conditions have the inherent capacity to have occurred at different places, at different times. However, the relationship of the essentials of Section 138 were essential to establish the offence irrespective of other factors. In this regard, the Section 178(d) of the Code of Civil Procedure was also referred. Perusal of the section made it crystal clear that each of the acts, constituting a single offence could be committed in many places, and each could be decided by the courts exercising jurisdiction in that locality.

The judgment further stated the loopholes in the Bhaskaran case, which were enlarged as gaping holes in the fabric of the judgment by the Shri Ishar Alloy Steels Ltd. v.Jayaswals Neco Ltd.[4],. On a combined reading of Sections 3, 72 and 138 of the NI Act. If the drawer has to be held criminally liable, the presentation of cheque should necessarily be within 6 months.

The proviso appended to the section posed some difficulty to which principles of statutory interpretation were applied. The dishonour of a cheque and the  sending a notice to the drawer for dishonour are 2 different fact altogether, hence for proving the offence the ingredients of the main section are to fulfilled, the proviso provides for a mere set of other conditions necessary for the application of the offence. There is not a speck of doubt that once the notice is received by the accused, he at his own risk, refrains from the payment of the amount due. He is deserving for any action taken in that behalf.

The court held that the scope of Bhaskaran case was considerably diluted in light of circumstances where the cheque was presented in some other locality. The view taken by the court in the Bhaskaran state could not be proper in the present case. The court also cleared the confusion with respect to the limitation period of 6 months to the accused, to pay the amount of the cheque after issuance of notice. This is done to afford a chance to the accused. In case the limitation period expires without payment, the cause of action arises accordingly. Hence, the order was held to be right in all respects, and a complaint could be instituted only in court exercising jurisdiction in the locality of the drawee’s bank as per the ratio in the case.