JUDGMENT Amar Saran, J.
1. This case has been taken up in the revised list. I have heard Sri Samit Gopal, learned counsel for the applicant. Sri A.K. Singh, who has filed his appearance slip on behalf of opposite party no. 2, is not present, nor has any counter affidavit been filed on his behalf.
2. This application has been filed for quashing criminal proceedings under Section 138 of the Negotiable Instruments Act, 1981, pending before the Spl. CJM, Kanpur Nagar, in Complaint Case no. 131 of 2001: Neeraj Chopra v. P.K. Vidyarthi. The application has been pressed on a short point that the cheque was presented before the drawer's bank after the expiry of 6 months from the date on which it was drawn although it was presented before the collecting bank within a period of 6 months. Reliance was placed on a decision of the apex Court reported in 2001 (42) ACC 651:
Shri Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd. in support of the proposition that the relevant bank where the cheque should be presented within 6 months is the drawer's bank and not the collecting bank.
3. The facts of the case in question before this court are that the applicant had given a cheque of Rs. 25,000/- dated 30.6.2000 bearing cheque no. 0288482 to opposite party no. 2, Neeraj Chopra, the complainant. This cheque was presented before the collecting bank, i.e. the Indian Overseas Bank on 30.12.2000, which was the bank in which opposite party no. 2 had his account. However, the cheque was presented before the drawer's bank (Bank of India, Swaroop Nagar Branch, Kanpur) on 2.1.2001, i.e. after the permissible period of 6 months from the date of issue of the cheque. This fact is mentienixi in the memo dated 2.1.2001 issued by the Bank of India, Swaroop Nagar branch, Kanpur, which was sent to the Indian Overseas Bank on 2.1.2001. This fact is also mentioned in paragraph 7 of the affidavit filed in support of the application filed by the applicant before this court. As no counter affidavit has been filed, there is no refutation of this allegations in the application. The specific controversy before the apex Court in the case of Shri Ishar Allow Steels Ltd. (supra) was whether the period of 6 months when the cheque was to be presented relate to the collecting bank or the drawee bank. In this connection it has been observed in paragraph 9 of the aforesaid ruling that the material bank is the drawee bank because the expression 'the bank' has been used in Section 138(a) of the Act and not 'a bank'. Paragraph 9 of the aforesaid judgement may usefully be extracted as under:
The use of the words "a bank" and "the bank" in the Section is indicator of the intention of the Legislature. The farmer is indirect article and the latter is prefixed by direct article. If the Legislature intended to have the same meanings for "a bank" and "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 cheque 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 opposed to the indefinite or generalizing force of "a" or "an". It determines what particular thing is meant; that is, what particular thing we are. to assume to be meant. "The" is always mentioned to denote particular thing or a person.
"The" would, therefore, refer implicitly to a specified bank and not any bank. "The bank" referred to in Clause (a) to the proviso to Section 138 of the Act would mean the drawee-bank on which the cheque is drawn and not all banks where the cheque is presented for collection including the bank of the payee, in whose favour the cheque is issued.
4. The apex Court has also considered the conflicting views of the Punjab and Haryana High Court in Om Prakash v. Gurcharan Singh 1997 (3) Crimes 433 and the Gujarat High Court in Arunbhai Nilkantharai Nanavati v. Jayaben Prahladbhai through Her Power of Attorney and Anr. 1999 (3) Crimes 252, which have taken the view that the concerned bank where the cheque was to be presented before 6 months was the drawee bank whereas the Madras High Court in ABK Publications Ltd. and Ors. v. Tamil Nadu Newsprint & Papers Ltd. 1999 (3) Crimes 97 has held that the the concerned bank where the cheque must be presented within 6 months is the collecting bank, or the payee's bank. However the apex Court has preferred the opinions of the Punjab and Haryana and Gujarat High Courts to the view taken by the Madras High Court which it has held has not laid down the correct law in this regard. It has held that if the cheque was not presented before 6 months before the drawee bank, it would absolve the accused of criminal liability under the N.I. Act and the accused could only be civilly liable.
5. In view of the aforesaid view of the law expressed by the apex court, I have no option but to allow this application. Accordingly this application is allowed and the criminal proceedings against the applicant are quashed in the present case.