The rule on ‘stale’ cheques. (1994 MLD 271 HABIB BANK LIMITED vs. JAMILUR REHMAN)

Ever wondered about the original judgment confirming the rule about stale cheques (6 months old) being invalid? Well here it is (down below).We will be posting some new rules on post dated cheques soon as well.

1994 MLD 271

 

[Karachi]

 

Before Syed Haider Ali Pirzada, J

 

HABIB BANK LIMITED—Applicant

 

versus

 

JAMILUR REHMAN—Respondent

Civil Revision Application No. 53 of 1988, decided on 16th December, 1989.

Negotiable Instruments Act (XXVI of 1881)–

—-S.84(2)—Out-dated draft —Encashment of—Payment on. bank draft presented to bank after about seventeen months from its issue was refused on ground that same was out-dated—Cheque presented more than six months after ostensible date of its issue, was considered a stale one—Period of six months was allowed for presentation of cheques according to practice ” of banks—Cheque or negotiable instrument was over due, or stale when it appeared on face of it to have been in circulation for an unreasonable length of time—Payment of draft presented after seventeen months, was rightly refused as draft had become out of date or stale.

Griffiths v. Dalton (1940) 2 KB 264 ref.

S. Hamid Hussain for Applicant.

Muhammad Idrees for Respondent.

Date of hearing: 16th December, 1989.

JUDGMENT

This is a defendant’s revision petition directed against the judgment and decree, dated 22-12-1987 passed by the Judge Small Causes Court, Karachi whereby he decreed the suit filed by the respondent.

The facts leading to the filing of the above revision petition are that the respondent is a practising Advocate and in the month of January, 1985 he received a Bank Draft bearing No. 0163846, dated 17-1-1985 issued by Riyadh Bank, Harf-al-Batin, Saudi Arabia for Rs.1,000 from his client Muhammad Iqbal towards his professional fee. The respondent averred in the plaint that unfortunately the Bank Draft, on receipt, was misplaced somewhere in case files of the respondent and could not be located/found earlier than May, 1986. It is further averred that after finding it the respondent deposited the aforesaid Draft with his bankers viz. U.B.L. Compbell Street Branch, Karachi for collection and payment to him. It is the case of the respondent that on presentation to the petitioner, the same was refused to be paid on the ground that the same is out-dated. The respondent served legal notice, dated 12-8-1986. As the petitioner did not pay the amount the respondent filed suit No.74 of 1987 against the petitioner.

The petitioner filed written statement. The petitioner pleaded in the written statement that the petitioner refused the payment because the draft had become outdated and stale. The petitioner pleaded in the written statement that the Draft was of dated 17-1-1985 and it was presented for encashment after over one year. The petitioner submitted in the written statement that according to established banking practice and procedure the validity of the draft is for six months, and it should be presented within the said validity period. On the pleadings of the parties the trial Court framed the following issues:—

(1)       Whether the plaintiff is entitled to recover Rs.1,000 from the defendants?

(2)       What should the decree be?

The learned Judge, Small Causes Court on appreciation of the evidence on record and taking into consideration the arguments advanced by the learned counsel for the parties, decreed the suit vide judgment and decree, dated 22-12-1987.

The petitioner being aggrieved by the judgment and decree has filed the present revision petition.

Mr. Hamid Hussain, the learned counsel for the petitioner contended that the negotiable instrument ought to have been presented to the petitioner within a reasonable time after it is received by the holder. The learned counsel contended that the said presentation was made contrary to the practice of all the Banks in Pakistan that the negotiable instruments loose their validity if they are not presented within six months from the date of issue.

On the other hand, Mr. Muhammad Idrees, the learned counsel for the respondent supported the judgment of the trial Court.

I have heard the learned counsel for the parties and perused the R&P of the case. I have also gone through the impugned judgment.

It is not in dispute that Bank Draft No.0168466 for Rs. 1,000 was issued on 17-1-1985 by Riyadh Bank. It is an admitted position that the same was presented for encashment after over one year. The petitioner returned the draft with endorsement on Memo. “The cheque is outdated”. The respondent served .a legal notice, dated 12-5-1986. The petitioner sent a reply dated 3-9-1986 stating therein that the draft had become outdated and stale. The petitioner advised the respondent to approach the purchaser of the draft for revalidation of the said draft whereafter the same may be presented for payment within the period of six months.

The petitioner bank pleaded practice in its written statement. The Bank Officer appeared in the Witness Box and stated that it is their practice that the negotiable instruments loose their validity if they are not presented within six months from the date of issue. It appeared from the evidence of the Bank Officer of the petitioner that the Bank Draft was presented after a lapse of seventeen months and in Pakistan there is a practice that negotiable instruments should be presented within a reasonable time. Subsection (2) of section 84 of Negotiable Instruments Act provides that in determining what is reasonable time, regard shall be had to the nature of the instrument, the usage of trade and of bankers, and the facts of the particulars case.

In Sheldon’s Practice and Law of Banking (10th Edition) at page 7, the learned author stated that “it is necessary to distinguish between cheques termed `out of date’ in Law for purposes of negotiation and those termed’ out of date’ by banker’s custom. As regards the Latter, most bankers return cheques presented six or more months after date, marked “out of date”, and require the drawer’s confirmation before payment:’

In Banking Law and Practice in India by M.L. Tannan (Fourteen Ed.) at P.131, the learned author stated that “unless a cheque is presented within reasonable time after the ostensible date of its issue, it should not be honoured.

Generally speaking, a cheque presented more than six months after the ostensible date of its issue, is considered a stale one. Some banks in England honour cheques even if they are presented within twelve months, but. both in England and in India a period of six months is allowed for presentation of cheques according to the practice of bankers.

A cheque or negotiable instrument is over due, or, as it is called, “stale” when it appears on the face of it to have been in circulation for am unreasonable length of time.

In Griffiths v. Dalton (1940-2-KB 264), the facts of the case are that the cheque was given to the plaintiff in August, 1931, and that time bore no date. Nothing was done with it until February, 1933, when the plaintiff filled in the date on the cheque February 20, 1933. He then presented the cheque for payment at a Brighton Branch of the Midland Bank, but it was dishonoured and he filed the suit. It was held as follows:—

“Although the cheque in the present case bore no date, the plaintiff, by S.20 of the Bill of Exchange Act, 1882, following what, I think, was the common law before the passing of that Act, had a prima facie authority to fill in the date, but by the common law he was bound to do so within a reasonable time. The question what is a reasonable time is a question of fact, and on the facts of this case I am satisfied that the reasonable time had long since elapsed. There was, therefore, no authority to fill in the date as it appeared on the cheque and no liability on the bank to meet it. The claim on the cheque fails.”

Following the principles laid down in the above. case, I am of the opinion that admittedly the Bank Draft was presented after seventeen months, the same had become out of date or stale and the petitioner had refused to pay the amount of Rs.1,000. The claim on the Bank Draft fails.

In the result, the revision petition succeeds, the judgment and decree dated 23-12-1988 passed by the learned Judge, Small Causes Court, Karachi are set aside. The suit stands dismissed. In the circumstances of the cafe of parties are directed to bear their own costs.

The above are the reasons for the short order, dated 28-5-1989, allowing the revision petition on the conclusion of the arguments.

H.B.T./H-370/K                                                                                 Petition succeeded.

More Recent Cases on State Cheques Updated as of November 2015:

2012 M L D 1551

 

[Sindh]

 

Before Salman Hamid, J

 

SHAFAQAT HUSSAIN HASHMI—Applicant

 

Versus

 

THE STATE—Respondent

Criminal Miscellaneous Application No.274 of 2011, decided on 12th December, 2011.

(a) Criminal Procedure Code (V of 1898)—

—-Ss.249-A & 561-A—Penal Code (XLV of 1860), Ss.489-F/420/506—Fraudulently issuing a cheque, cheating and dishonestly inducing delivery of property, criminal intimidation—Power of Magistrate to acquit accused at any stage—Presentation of stale cheque for encashment—Accused (applicant) had filed an application under S.249-A, Cr.P.C, before the Magistrate for acquittal from the charges raised by the F.I.R., but same was dismissed—Validity—Magistrate had missed out on the point that cheque presented for encashment was a stale cheque, as it had been presented for encashment beyond the period of six months from the date of its issue, and in circumstances it was bound to be dishonoured—Complainant (respondent) seemed to know well that the cheque would not be encashed but still presented it for payment, merely to bring a case against the accused under S.489-F, P.P.C—Dishonest intention of the accused was not patent or deducible from circumstances of the case—Charges brought against accused were found groundless, and resultantly proceedings against the accused arising from the F.I.R. were quashed.

(b) Criminal Procedure Code (V of 1898)—

—-Ss. 249-A & 561-A—Penal Code (XLV of 1860), S.489-F/420/506—Fraudulently issuing a cheque, cheating and dishonestly inducing delivery of property, criminal intimidation—Power of Magistrate to acquit accused at any stage—Jurisdiction of Magistrate, determination of—Presentation of stale cheque for encashment—Contention of accused (applicant) that Magistrate did not have the jurisdiction to try the case since bank which issued the cheque and bank where it was presented for encashment were located in different areas—Validity—F.I.R. revealed that accused and complainant (respondent) were neighbours and cheque was issued at the residence of the complainant (respondent) which came within the jurisdiction of the Magistrate—Magistrate in question did have the jurisdiction to try the case.

(c) Criminal Procedure Code (V of 1898)—

—-Ss. 561-A, 249-A & 265-K—Penal Code (XLV of 1860), S.489-F/ 420/506—Fraudulently issuing a cheque, cheating and dishonestly inducing delivery of property, criminal intimidation—Quashing of proceedings by High Court—Scope—High Court in appropriate cases may exercise jurisdiction under S. 561-A, Cr.P.C without waiting for the Trial Court to pass order under S. 249-A or 265-K Cr.P.C, if the facts of the case so warrant—Where High Court comes to the conclusion on the basis of the facts on record that no offence could be made out and it would amount to an abuse of the process of law and allowing the prosecution to continue with the trial would be a waste of time and aggravation of the miseries of the accused, then High Court could quash the proceedings.

Tahir Rahim for Applicant.

Saleem Akhtar A.P.-G. for the State.

Date of hearing: 30th November, 2011.

JUDGMENT

 

SALMAN HAMID, J.—The applicant, via this application under section 561-A, Criminal Procedure Code has questioned order dated 24-7-2010, passed by the IXth Judicial Magistrate, Karachi East (JM), dismissing application moved by the applicant under section 249A, Cr.P.C. for acquittal from the charges raised against him in F.I.R. No.238 of 2009 of Police Station Shah Faisal Colony, Karachi.

  1. Encapsulating, facts deducible from the F.I.R. seems to be that one Faiz Muhammad Memon was issued a Cheque No.7481638 dated 28th August, 2008 by the applicant at his residence (Flat No.18 Block A, Falaknaz Center Sharah-e-Faisal, Karachi), for an amount of Rs.300,000. This cheque was presented by the complainant for its encashment in an account at Soneri Bank, Clifton Karachi, which was dishonoured. Present F.I.R. cropped up thereafter.
  1. The main thrust of argument of the learned counsel for the applicant was that since the cheque that was drawn in favour of the complainant was of a UBL branch at Airport and that admittedly it was presented for encashment at Soneri Bank, Clifton Branch and that F.I.R. was lodged at Police Station Shah Faisal Colony, Judicial Magistrate had no jurisdiction to try the case.
  1. The State Counsel opposed the application by asserting that the F.I.R. did not only include section 489-F but also contained sections 420 and 506, P.P.C. and from the F.I.R. it is clear that the cheque was dishonestly issued by the applicant at the residence of complainant at Police Station Shah Faisal and also that the intention of cheating was patent at the time of issuance of the cheque and that criminal intimidation in terms of section 506, P.P.C. was alive and therefore the JM had the jurisdiction. Even otherwise to attract the provisions of section 249-A, Cr.P.C., it was argued by the learned State Counsel, that it was incumbent upon the applicant to have shown that there was no charge against him and/or the charge in F.I.R. was groundless.
  1. I have heard arguments of the learned counsel and the A.P.-G.; gone through the record and the order dated 24-7-2010. It seems that the learned JM totally missed out on the point that cheque that was presented for encashment was a stale cheque inasmuch as it was admittedly issued on 28-8-2008 and from the narration of F.I.R. dated 4-7-2009 it (cheque) was presented around July, 2009 i.e. beyond period of six months from the date of its issue. The cheque having been presented beyond six month’s time was bound to be dishonoured and bounced. Section 489-F of Cr.P.C. reads as under:–

“489-F. Fraudulently Issuing a cheque:– whoever dishonestly issued a cheque towards repayment of a loan or fulfilment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to three years, or with fine, or with both, unless he can establish, for which the burden of proof shall rest on him, that he made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque.”

  1. The language of above reproduced section is clear in its intent that an offence under this section would come to fore only upon the cheque being issued, dishonestly and upon its presentation it is dishonoured thereby confirming the intention of issue of cheque dishonestly by the issuer. Gauging the case in-hand on the touchstone of the language of the above reproduced section 489-F, Cr.P.C. and is being put in juxtaposition to the narration of F.I.R., it would become abundantly clear that dishonest intention of the applicant is nowhere patent and/or deducible if the cheque was issued with dishonest intention and upon its presentation was bound to be dishonoured. On the contrary it is clear from the narration of the F.I.R. that there were some dealings between the applicant and complainant and that the complainant and applicant at the relevant time were on friendly terms and were neighbours and for purchase of a vehicle an amount of Rs.300,000 had been obtained and that upon insistence of the complainant as the amount lent was not forthcoming, cheque under point was issued as far back as on 28-8-2008 which upon presentation beyond six months period of time stood discharged.
  1. It is well settled that the High Court in appropriate cases may exercise jurisdiction under section 561-A, Cr.P.C. without waiting for the trial court to pass order under section 249-A or 265-K, Cr.P.C. if the facts of a given case so warrant inasmuch as main consideration which needs to be kept in mind is that whether the continuance of the proceedings before trial court would be an exercise in futility and wastage of time and abuse of the process of court or not? If the High Court comes to the conclusion on the basis of the facts on record that no offence can be made out and it would amount to abuse of process of law and allowing the prosecution to continue with the trial would be a waste of time and aggravation to the miseries of the accused then High Court in appropriate cases quash the proceedings.
  1. It is abundantly clear from the above discussion that a stale cheque was presented for payment beyond the period of six moths and it was bound to dishonour and it seems that the complainant knowing well that the cheque would not be encashed, still presented it for payment, merely to bring a case against the applicant under section 489-F, Cr.P.C. This aspect of the matter having been settled and put at rest, the point of jurisdiction as raised by the learned counsel may be decided by merely observing that admittedly, as per contents of the F.I.R. the cheque was issued at the residence of the complainant within the jurisdiction of Police Station Shah Faisal Colony by the applicant who was neighbour of the complainant and in this view of the matter, Police Station Shah Faisal Colony also had jurisdiction.
  1. However for what has been observed above regarding presentation of a stale cheque, the charges brought against the applicant are found groundless. Therefore it would be appropriate and in the interest of justice that the proceedings be nibbed in the bud and the process of law is prevented from being abused. This being the position, proceedings in Criminal case No.26 of 2010 arising from F.I.R. 238 of 2009 under sections 420, 489-F and 506, P.P.C. of Police Station Shah Faisal Colony pending before the JM are hereby quashed. Application disposed of accordingly.

MWA/S-18/K                                                                                     Proceedings quashed.

KAMRAN AKHTER v.s. JAWED AHMED KHAN 2005 CLC 797     KARACHI-HIGH-COURT-SINDH

–O. XXXVII, Rr. 2 & 3—Suit for recovery of amount—cheque for repayment of amount of loan which was issued by defendant on 7-12-2000, was presented by plaintiff in Bank on 24-7-2001, after more than six months of its issue—Bank declined to encash cheque as same bore date of issue of more than past six months and had become “stale cheque ”—Suit based on such out of date stale cheque , could not have been decreed by Trial Court—Appeal filed against judgment of Trial Court was allowed and suit was remanded to Court below with a direction that same be treated to have been filed under ordinary provision of Civil Procedure Code and be tried and decided accordingly.

 

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