TMI Blog1994 (1) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... scounted them with the respondent/complainant and received a sum of ₹ 9,214 after deducting all charges on March 12, 1990. When the complainant presented the cheques for payment, they were dishonored on September 21, 1990, with the endorsements refer to drawer and exceeds arrangement respectively. The statutory notice was issued on October 5, 1990, to the present petitioners and Diwan Mohideen by the complainant/respondent giving seven days time to make the payment. The above said notice was received by them on October 8, 1990. After waiting for more than 15 days as contemplated by the Act, the complaint was lodged on November 20, 1990, under section 138 of the Negotiable Instruments Act, 1881. 2. In the present petition, accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action. The dishonour of the cheque by the banker for the two reasons stated therein constitutes the offence by the drawer. Besides the wording in clauses (b) and (c) of the proviso to section 138 as well as section 139 would make it clear that either the payee or the holder in due course can maintain the action. 3. One of the conditions for the applicability of section 138 of the Negotiable Instruments Act, 1881, is that the cheque should have been 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. In this case, as per the averments in the complaint, the cheques bear the dates April 22, 1990, and April 28, 1990. The main argument of learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied therein. When a post-dated 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 bec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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