TMI Blog1992 (1) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... ing order dated July 1, 1991, passed by the Judicial Magistrate, I Class, Karnal, in these complaints. 2. The brief facts leading to the litigation may be enumerated. In 1988 a private limited concern, known and styled as Sai Beverage Pvt. Ltd., was floated and a piece of land was purchased in District Sonepat, while its registered office was situated at 43 Km. Stone, Karnal GT Road. Disputes having arisen, civil litigation started which culminated in a compromise. Under the terms of the compromise, the petitioner agreed to pay a total sum of ₹ 10,00,000 to the respondent and his associates through instalments. The respondent had to hand over the shares issued in his name and in the names of his associates. Post-dated cheques were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated cheques simultaneously on transfer of the share certificates held by the respondent and his associates in respect of the above-said two companies, and those shall have the first charge on the present and future assets of the appellant. 4. The recitals in the compromise deed clearly postulated the issuing of post dated cheques simultaneously when the shares were transferred. I may, however, add that the date of issue of the post-dated cheques, whether March 5, 1990, as claimed by the respondent or March 12, 1990, as claimed by the petitioner, will not make any material difference for the decision of the present case as, in either case, the legal proposition will be the same. 5. Section 138 of the Act envisages the commission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the event of its dishonour for want of funds, the criminal liability created under Section 138 will not be attracted. The fact that it was stipulated in the compromise and it was to the knowledge of the respondent that the criminal charge shall not be attracted in case of dishonour, derives support from the averments made in paragraph 7 of the compromise deed wherein it had been agreed that in case the petitioner fails to arrange for payment of the cheque in favour of the respondent or his associates, the respondent shall be entitled to recover the amount by filing an execution. Section 138 of the Act is a penal provision and its language has to be strictly construed. Under this section, the offence is not committed either by the issuance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of six months, he should be deemed to receive it with the knowledge that in the event of dishonour for want of funds, Section 138 of the Act will not help him. This obviously is the intention of Parliament. . . It flows from the above discussion that a cheque is drawn on the date when the drawer signs the cheque, complete in its form. On such an interpretation, cheques post-dated or ante-dated beyond the period of six months from the date the cheques bear, would be out of the purview of Section 138 of the Act. 7. A contrary view was taken by the Kerala High Court in Manoj K. Seth v. Fernandez [1992] 73 Comp Cas 441. Their Lordships of the Kerala High Court considered as to when a post-dated cheque shall be deemed to have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heque was given in the Act for the purpose of Section 138. As such, the other provisions of the Act have to be considered as to when the cheque is deemed to have been drawn under Section 7 of the Act. 'Drawer' and 'drawee' are defined as follows : 7. 'Drawer', 'Drawee'. - The maker of a bill of exchange of cheque is called the 'drawer', the person thereby directed to pay is called the 'drawee'. 9. A document is stated to be made when recorded and signed by the maker thereof. A cheque shall be deemed to have been made on the day it is filled in and signed by the drawer without reference to the date it carries. The date it carries at its face is only recorded to determine if it is an a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
