G. Thirugnanasambandam vs R. Shanmugasundaram

Padmini Jesudurai, J.—The accused against whom the respondent has filed a compliant, pending before the XIV Metropolitan Magistrate,

Egmore, Madras, at C.C. No. 21500 of 1989, for an offence u/s 138 of the Negotiable Instruments Act, 1881, as amended by Act 66 of 1988,

has field the present application u/s 482 of the Criminal Procedure Code, 1973, to quash the above proceedings.

According to the complaint, on January 13, 1989, the petitioner issued a cheque, post-dated as April 18, 1989, for sum of Rs. 3,50,000 drawn

on the Bank of Madura Ltd., Annamalai Nagar Branch, Chidambaram. The allegation in the complaint is that the petitioner requested the

respondent not to present the cheque before April 18, 1989. The respondent presented the cheque at his bank, viz., the Indian Bank, Egmore,

Madras, on September 9, 1989. The Indian Bank, having received a communication from the Bank of Madura Ltd., Annamalai Nagar,

Chidambaram, that the above cheque had been returned with an endorsement ""refer to drawer"" for want of funds in the petitioner''s account,

communicated the same to the respondent on September 19, 1989. The respondent, on October 2, 1989, gave notice to the petitioner, intimating

the fact of dishonouring of the cheque and requested him to arrange for payment of the amount due under the cheque. The notice was received by

the petitioner on October 9, 1989. The petitioner did not make any payment but sent a reply containing a false allegation that the cheque had been

obtained by coercion. Left with no option, the respondent filed the criminal complaint.

Thiru Viswanathan, learned counsel for the petitioner, would contend that the averments in the complaint, even accepted as they are, do not

constitute an offence u/s 138 of the Negotiable Instruments Act (hereinafter referred to as ""the Act""), since clause (a) of the proviso required that,

to attract section 138 of the Act, the cheque has to be presented to the bank, within a period of six months from the date on which it was drawn or

within the period of its validity, whichever is earlier, and that this requirement is not fulfilled in this case, since the cheque though post-dated, had

actually been drawn on January 13, 1989, and had been presented in the bank only on September 9, 1989, and as such the proceedings have to

be quashed. Learned counsel placed reliance upon a judgment of this court rendered by me in Crl. M.P. Nos. 9720 and 9755 of 1989, dated

April 15, 1990, Babu Xavier v. Lalchand Munnath [1990] TLNJ 121 wherein I had held that, in the case of a post-dated or ante-dated cheque,

the date on which the cheque is signed, complete in its form, is the date on which the cheque is drawn, despite the fact that the cheque bears a

different date.

Per contra, Thiru Kandasamy, learned counsel for the respondent, would contend that the above decision would require reconsideration and

such an interpretation would take all cheques, post-dated beyond a period of six months, out of the purview of the penal provision and would

thereby defeat the very object for which section 138 of the Act had been introduced by the recent amendment. Learned counsel would further

contend that, in the case of ante-dated or post-dated cheques, the intention of the drawer is that it should come into force on the date the cheque

bears and that, in such cheques, the acceptance is qualified regarding time of payment.

I have considered all these aspects and several other relevant aspects and have finally held that a cheque is drawn on the date the cheque is

signed and issued by the drawer, complete in its form and not on the date the cheque bears. No legal contention has been put forward before me

now, necessitating a reconsideration of the above judgment. A post-dated cheque is drawn, not on the date the cheque bears, but on the date the

drawer signs the cheque complete in its form. The complaint in the instant case shows that the cheque was signed by the petitioner complete in its

form on January 13, 1989, and had also been handed over to the respondent on the same day. The cheque, therefore, though post-dated to April

18, 1989, was drawn on January 13, 1989. It has been presented, whatever the reason for the for the late presentation be, only on September 9,

1989, that is beyond the statutory period of six months required by clause (a) of the proviso to section 138 of the Negotiable Instruments Act.

Even on a reading of the complaint, there is non-compliance with clause (a) of the proviso and as such offence u/s 138 of the Act is not made out.

In the result, the petition is allowed and the proceedings are quashed.