N SIVALINGAM Vs. A V CHANDRAIYER

JUDGEMENT

(1.) THE respondent herein preferred a complaint under section 138 of the Negotiable Instruments Act, 1881Code of Criminal Procedure, 1973. THEir contention is that even according to the complaint the cheques were drawn only in favour of A-1. THEre is no connection between the complainant and the quash petitioners. Action under section 138 of the Negotiable Instruments Act, 1881One of the conditions for the applicability of section 138 of the Negotiable Instruments Act, 1881 Besides, in Anil Kumar Sawhney v. Gulshan Rai [1993] LW (Crl.) 641; the Supreme Court has laid down that for an offence to be made out under the substantive provisions of section 138 of the Negotiable Instruments Act, 1881, it is mandatory that the cheque is presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. It is the cheque drawn which has to be presented to the bank within the period specified therein. When a postdated cheque is written or drawn, it is only a bill of exchange and as such the provisions of section 138(a) are not applicable to the said instrument. THE post-dated cheque becomes a cheque under the Act on the date which is written on the said cheque and the six month period has to be reckoned for the purposes of section 138(a) from the said date. One of the main ingredients of the offence under section 138 of the Act is the return of the cheque by the bank unpaid. Till the time the cheque is returned by the bank unpaid, no offence under section 138 is made out. A post-dated cheque cannot be presented before the bank, and as such the question of its return would not arise. It is only when the post-dated cheque becomes a "cheque", with effect from the date shown on the face of the said cheque, that the provisions of section 138 come into play. THE net result is that a post-dated cheque remains a bill of exchange till the date written on it. With effect from the date shown on the face of the said cheque it becomes a "cheque" under the Act and the provisions of section 138(a) would squarely be attracted. In the present case, the post-dated cheques were drawn on March 12, 1990, but they became "cheques" only on April 22, 1990, and April 28, 1990, the dates shown therein. THE period of six months, therefore, has to be reckoned from the date mentioned on the face of the cheques. As the apex court has pointed out, section 138 has to be construed with reference to the context. If the object of bringing section 138 of the Act on the statute has to be fulfilled, then the only interpretation which can be given to clause (a) of the proviso to section 138 of the Act is that a post-dated cheque shall be deemed to have been drawn on the date it bears.In the result, the criminal original petition stands dismissed. Registry is to send the records expeditiously to the trial court.