ORDER
1. This Criminal Petition is directed under S. 482 of the Code of Criminal Procedure to quash the proceedings in C.C. No. 128/92 on the file of the II Metropolitan Magistrate, Hyderabad.
2. The petitioner issued four cheques under dated 15-12-1991, 18-12-1991, 19-12-1991 and 23-12-1991 respectively for Rs. 60,000/-, 70,000/-, 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 Ist respondent filed C.C. No. 128/92 on the file of the IInd Metropolitan Magistrate, Hyderabad under S. 138 of the Negotiable Instruments Act (in brief ‘the Act’). As such the petitioner who is the sole accused in C.C. 128/92 filed the present proceedings under S. 482 of the Code of Criminal Procedure to quash the C.C. No. 128/92.
3. It is the main contention of the petitioner that the four post dated cheques are issued on 23-6-1990 payable on different dates, the said cheques, even according to the petitioner, were presented on 18-1-1992 for encashment i.e., long after six months period prescribed under S. 138 of the Act and consequently the prosecution is not maintainable. On the contrary the contention of the Ist respondent is that the cheques were presented within six months from the dates shown on the said cheques and consequently the prosecution is well within time.
4. On 28-1-1992 the Ist respondent got issued a registered notice through his counsel alleging that the cheques issued by the petitioner were presented for encashment, they bounced and accordingly petitioner was intimated about the factum of bouncing. In the said notice it is further averred as follows :
“that on 23-6-1990 you have issued four post dated cheques payable on different dates in favour of my client for repayment of the said amount on different dates. My client has deposited the said four cheques in his account for encashment in his bank, State Bank of India, Main Branch, on 18-1-1992. But all the four cheques were returned back to my client as bounced.”
Thus, it is the specific case of the Ist 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 or in part, of another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that 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 provisions 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.”
If 23-6-1990 is taken as the date on which the cheques is question were issued, as the said cheque were presented only on 18-1-1992 beyond six months, the prosecution is barred by limitation. There is no judgment of this court on this point. But the learned counsel for the petitioner relies upon Crl. MP. No. 8855/1991 dt. 21-1-92 of the High Court of Punjab and Haryana wherein it was observed that a post dated cheque for the purpose of clause (a) of proviso to S. 138 of the Act has to be treated to have been drawn on the date it is delivered to the payee and not to be taken as drawn on 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 1991 Cri LJ 3253). 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 object of the proviso for which S. 138 was enacted will be defeated. It is now to be seen as to whether the reasoning adopted by the Kerala High Court is correct. In the instant case it is to be seen that S. 118 of the Act so far as it is relevant reads as follows :-
Presumption as to negotiable instruments – Until the contrary is proved, the following Presumptions shall be made :-
(a) .. .. .. (b) as to date - that every negotiable instrument bearing a date was made or drawn on such date;
So the presumption under S. 118(b) can be drawn until the contrary is proved. Where there is material to show that the cheque was antedated, the presumption under S. 118(b) has no application. In this case, the first respondent has categorically mentioned that the cheque in question is an antedeted one issued under dated 23-6-1990. In view of that the presumption as to the date issue of the negotiable instrument as evidence under S. 118(b) has no application evidence since there is material to the contra.
5. Regarding the next contention their Lordships of the Kerala High Court put the same as follows (1991 Cri LJ 3253, at p. 3256, Para 10) :-
“The statute has to be construed with reference to the context and other clauses of Act to make it consistent with them. The very object of the provision is to enhance the acceptability of cheque by making the drawer liable for penalty in case the cheque bounces for the reason mentioned 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 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 is drawn, it can be presumed that the payee had the knowledge that in the event of its dishonour for want of funds, the criminal liability created under S. 138 will not be attracted.”
Thus, as rightly observed by the Punjab and Haryana High Court in the decision referred to above where a party accepts a post dated cheque, suppose a cheque dated six months beyond the date on which it was actually delivered, the party is accepting the said post-dated cheque with open eyes and consequently he cannot seek for prosecution in the event of the said cheque being bounced. Under these circumstances, both the reasoning adopted by the Kerala High Court for holding that the cheque must be deemed to have been issued on the date it bears but not the actual date on which it was in fact delivered are not sound. So, adopting the above referred decisions of the Madras and Punjab and Haryana High Courts and not following the Kerala High Court judgment, I am of the clear opinion that a postdated cheque for the purpose of Clause (a) of the proviso appended to S. 138 of the Act has to be treated 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.
6. Since the registered notice issued by the first respondent shows that the cheques in question were issued on 23-6-1990 and was the same were presented for encashment under date 18-1-1992, far beyond six months period contemplated under S. 138 of the Act, the C.C. 128/92 filed against the petitioner by the Ist respondent is quashed under S. 482, Cr.P.C.
7. In the result, the Criminal petition is allowed.
8. Petition dismissed.