TMI Blog1992 (9) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... 40,000/- and Rupees 50,000/- all on the Indian Bank, Begum Bazar, Hyderabad in favour of the first respondent. The first respondent presented them on 18-1-1992 in the State Bank of India, Main Office, Bank Street, Hyderabad for encashment. All the said cheque bounced on 22-1-1992 for want of funds in the account of the petitioner and to the same effect the first respondent was informed on the following date i.e. on 23-1-1992. As such on 28-1-1992 R-1 issued a notice calling upon the petitioner to pay the amounts covered by the said cheques, but having received the said notices the petitioner neither paid the amount nor gave any reply. Consequently the 1st respondent filed C.C. No. 128/92 on the file of the IInd Metropolitan Magistrate, Hyd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is the specific case of the 1st Respondent that all the four cheques in question were post dated cheques issued under date 23-6-1990 though the said cheques show that they were issued on different dates in December, 1991. In view of the registered notice dated 28-1-1992 wherein it was mentioned that all the four cheques were post dated cheques issued on 23-6-1990 the question is whether the prosecution is in time. S. 138 of the Act so far as it is relevant reads thus : 138. Dishonour of Cheque for Insufficiency etc., of Funds in the account : Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date it bears. To the same effect is the decision of the Madras High Court in Crl. MP. No. 1714/1990, dt. 14-6-1990. A contrary view is taken in a decision reported in Crl. MC. No. 97/1991, dt. 20-6-1991 by the Kerala High Court (reported in). The Kerala High Court relied upon two grounds for coming to the said conclusion. Firstly, that as per presumption under S. 118(b) of the Act the cheque must be presumed to have been drawn on the date it bears and secondly on the ground that in the event of holding that the post-dated cheque for the purpose of clause (a) of the proviso to S. 138 of the Act has to be treated as to have been drawn on the date it is delivered to the payee and not to be treated as drawn on the date it bears, the very o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be drawn on the date of its delivery, the drawer of such a cheque can defeat S. 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. This point was answered by the Punjab and Haryana High Court by making the following observations : The Legislature, in its wisdom has used in S. 138 the words within a period of six months from the date on which it is drawn. instead of saying within six months from the date of cheque bears. The post-dating of the cheque does not make it invalid, but when such a cheque is post-dated in a manner that the date of presentation is beyond the period of six months of the date on which it i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
