- (1.) BOTH these petitions are being decided by a common judgment and order because the point around which they are revolving is the same and the facts are similar.
(2.) THE petitioners are hereby assailing the correctness, propriety and legality of the order by which the learned Magistrate issued the process against them for attending the Court in respect of the cases initiated against them in context with the provisions of s. 138 of the Negotiable Instruments act, 1881 (hereinafter referred to as the Act for convenience ). These two petitions are dealing with two criminal prosecutions initiated against the petitioners in respect of two cheques one is for the sum of Rs. 25 lacs and the other is the cheque for the sum of Rs. 3,30,000/ -. Both the cheques were drawn on the same day i. e. 5. 1. 1996 and both the cheques were submitted by original complainant - the respondent No. 1 in Punjab National Bank on 5. 7. 1996. Punjab National Bank presented those cheques to Samata sahakari Bank Ltd. , Santacruz (West), Mumbai on 8. 7. 1996 and those cheques were dishonoured. Two complaints were filed in the Court of concerned Magistrate. He took the cognizance of those two complaints and issued the process against the petitioners.
(3.) SHRI Manoj Mohite, Counsel appearing for the petitioners, placed reliance on the judgment of the Supreme Court in the matter of Shri Ishar alloy Steels Ltd. v. Jayaswals Neco Ltd. wherein the Supreme Court observed that in s. 138 two words have been used, one "a bank" and second "the bank". The Supreme Court pointed out the difference between these two words and held that these two words have been used in the said section with specific purpose for indicating that the drawer may draw the cheque on any bank in which he has got the account and whenever such negotiable instrument has been given to drawee, he has to present it for payment in the bank on which the said negotiable instrument has been drawn and that has to be presented within six months from the date on which such negotiable instrument has been drawn. If the drawee presents such negotiable instrument after six months in the bank on which the said negotiable instrument has been drawn, and if that is dishonoured, the drawee has to blame himself for such delay and if such negotiable instrument is dishonoured, the drawee, cannot file a criminal complaint against the drawer on that count.;