TMI Blog1991 (6) TMI 257X X X X Extracts X X X X X X X X Extracts X X X X ..... e Bank, Ernakulam, was presented for encashment on August 2, 1990, was dishonoured on August 3, 1390, and that though the notice required under Clause (b) of the proviso to Section 138 of the Negotiable Instruments Act, 1881 (for short, the Act ), was issued, the petitioner failed to make the payment within 15 days of the receipt of the notice and, therefore, the petitioner has committed an offence under Section 138 of the Act. 2. According to the petitioner, the cheque post-dated March 6, 1990, was drawn on March 1, 1986 ; and since the cheque was not presented within six months from the said date as required under Clause (a) of the proviso to Section 138 of the Act, no offence under the said section is disclosed and, therefore, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e bank unpaid, either because the amount of money standing to the credit of that account is insufficient to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both : Provided that nothing contained in this section shall apply unless- (a) the cheque has 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 ; (b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cheque is a post-dated cheque is a matter to be proved, even assuming that the cheque was delivered on March 1, 1986, the cheque can be considered to have been drawn only on the date It bears, that is March 6, 1990. According to him, since the cheque was presented within six months from the date, the condition in Clause (a) of the proviso is also satisfied. The two questions that would arise are whether the cheque in question is a post-dated cheque delivered on March 1, 1986 ; and the other, which is the date on which a post-dated cheque can be considered to have been drawn for the purposes of Section 138 of the Act. 6. The first is a question of fact. Reliance was placed by the petitioner on annexures II and V in support of his argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for consideration in Paramjith Singh's case [1989] 2 KLT 740 : [1990] 67 Comp Cas 570 HC or in Prithviraj's case which confirmed the former. What was considered in Paramjith's case and Prithviraj's case was whether prosecution is maintainable under Section 138 of the Act in the case of a cheque issued before the commencement of the Amending Act 5G of 1988 but dishonoured after the said commencement. The contention was that since the Amending Act came into force only on April 1, 1989, and the cheque therein was drawn before such commencement, prosecution under Section 138 of the Act is not maintainable in view of Article 20(1) of the Constitution. It was held, as per Section 138 of the Act, that an offence is committed not on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e containing a date later than the date of delivery. Therefore, it has an implied notice that there is no present deposit to the credit of the drawer and an implied guarantee that the funds would exist when it become due. Though the cheque is payable only on a future date, it may be negotiable. There is no prohibition in the Act against post-dating a cheque. If a banker pays the amount before the due date of a cheque, he will lose the statutory protection arising from such payment. In the decision in Jiwanlal v. Rameshwarlal, AIR 1967 SC 1118 : [1966] 36 Comp Cas 866 . in considering the question as to when a payment would be deemed to have been made under a post-dated cheque for the purpose of Section 20 of the Limitation Act, it is held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the said section. If a post-dated cheque is considered to be drawn on the date of its delivery, the drawer of such a cheque can defeat Section 138 of the Act, by showing a date beyond six months of its delivery. In the circumstances, an interpretation which will bring about such a result cannot be adopted. The object of the section is to make the drawer of the cheque subject to penalty when the cheque bounces on the ground mentioned in the section. The rigour of the section itself reveals the intention of the Legislature. Enough safeguards are provided in the section itself to protect honest drawers. 12. An offence under Section 138 of the Act would be committed only when a cheque drawn for payment of any debt or liability is returned ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
