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, 1881, pending before the Special C.J.M., 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 in Shri Ishwar 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 mentioned 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 Ishwar 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 judgment 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 former is indirect article and the latter is pre-fixed 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 and 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 assure 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 bank where the cheque is presented for collection including the bank of the payee, in whose favour the cheque is issued.";