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2002 DIGILAW 1275 (AP)

SHEELAM RAJI REDDY v. SAMUDRALA BIXMAIAH

2002-10-31

C.Y.SOMAYAJULU

body2002
C. Y. SOMAYAJULU, J. ( 1 ) THE short, but important, point for consideration in this petition is whether the period of limitation of six months prescribed by Section 138 of the negotiable INSTRUMENTS ACT, 1881 (for short "the Act") begins from the actual date of drawal of the cheque or from the date which is found on the cheque. ( 2 ) FIRST respondent filed CC No. 299 of 2001 on the file of the Court of Judicial first Class Magistrate, Special Mobile, nalgonda against the petitioner, alleging that on 7-7-2000 the petitioner, accepting the liability of Surender Reddy to discharge the loan due to him from Surender Reddy, had issued two post-dated cheques dated 28-3-2001 for Rs. 75,000/- each and requested him to collect the amount by enchashing the cheques, and accordingly on 28-3-2001 he presented the said cheques to the Bank, but those cheques were returned for want of funds on 21-8-2001, and so he issued a statutory notice to the petitioner but the petitioner did not pay the amount, and so the petitioner is liable to be punished under section 138 of the Act. This petition is filed to quash the proceedings on the ground that the complaint is barred by time because the cheques admittedly issued on 7-7-2000 were in fact presented on 28-3-2001, i. e. , beyond six months period contemplated by section 138 of the Act. ( 3 ) THE contention of the learned Counsel for the petitioner is that as per section 138 of the Act, a cheque has to be presented in the Bank within six months from the date of its drawal or within the period of its validity, whichever is earlier, and since admittedly the cheques were drawn and given to the first respondent on 7-7-2000, as per Section 138 of the Act they have to be presented within six months therefrom, and since admittedly they were presented in the Bank on 28-3-2001 beyond six months from 7-7-2000, complaint under section 138 of the Act is not maintainable. It is his contention that the presumption under Section 118 of the Act also stood rebutted since the first respondent himself admitted that the cheques were in fact drawn on 7-7-2000, but not on 23-8-2000 the date which they bear. It is his contention that the presumption under Section 118 of the Act also stood rebutted since the first respondent himself admitted that the cheques were in fact drawn on 7-7-2000, but not on 23-8-2000 the date which they bear. Learned Counsel for 1st respondent relying on Shri Ishar alloy Steels Limited v. Jayaswals Neco limited, (2001) 3 SCC 609 , and Ashok yeshwant Badave v. Surendra Madhavrao nighojakar and another, (2001) 3 SCC 726 , contended that the period of six months has to be reckoned from the date mentioned on the cheques but not from the date on which they were actually drawn and since the cheques bearing date 28-3-2001 were present in the Bank on the same day, it is clear that the cheque was presented within the period mentioned in Section 138 of the Act and so there are no grounds to quash the complaint against the petitioner. In reply, the contention of the learned counsel for petitioner is that since the supreme Court in the two decisions relied on by the learned Counsel for the 1st respondent did not consider whether the presumption under Section 118 stood rebutted or not, those decisions have no application to the facts of this case. ( 4 ) IN para 7 of Shri Ishar Alloy Steels Limited case (supra), the Supreme Court held a post-dated cheque is a bill of exchange till the date mentioned thereon and becomes a cheque under the Act only on the date mentioned on the cheque and the six months period has to be reckoned, for the purposes of Section 138 of the Act, from the said date . The contention of the learned counsel for the petitioner is that the said date refers to the date of drawal of the cheque but not the date mentioned on the cheque. There is no force in the said contention because it is clearly stated that till the date mentioned in the cheque arrives, a post-dated cheque would remain a bill of exchange and it becomes a cheque for the purpose of Section 138 of the Act only from the said date . There is no force in the said contention because it is clearly stated that till the date mentioned in the cheque arrives, a post-dated cheque would remain a bill of exchange and it becomes a cheque for the purpose of Section 138 of the Act only from the said date . Since Section 138 of the act does not apply to bills of exchange, it is clear that the said date mentioned towards the end of Para 7 of the above judgment of the Supreme Court refers to date mentioned on the date of its drawal. In Ashok Yeshwant Badave case (supra), cheque drawn 10-11-1995 with a post-date 20-1-1996 was presented in the Bank by the drawee on 7-7-1996. On its dishonor the drawee filed a complaint for an offence under Section 138 of the Act. The drawer filed a quash petition on the ground that the cheque was presented into the Bank beyond six months from its drawal on 10-11-1995, and so the complaint is not maintainable. Supreme Court in Para 20 of its judgment held that when a post-dated cheque is written or drawn, it is only a bill of exchange, and so long the same remains a bill of exchange, the provisions of Section 138 are not applicable to the said instrument, and that a post-dated cheque becomes a cheque within the meaning of Section 138 of the act on the date written thereon, and the six months period has to be reckoned for the purposes of proviso (a) to Section 138 of the Act from the said date and dismissed the quash petition. ( 5 ) IN view of the above decision of the Supreme Court it is clear that a postdated cheque becomes a cheque for the purpose of Section 138 of the Act only on the date mentioned thereon and in between the period of drawal of the cheque and the date mentioned on the cheque it is only a bill of exchange. Therefore, the period of six months mentioned in Proviso (a) to Section 138 of the Act begins to run only from the date mentioned in the cheque but not the date of drawal of the cheque. Therefore, the period of six months mentioned in Proviso (a) to Section 138 of the Act begins to run only from the date mentioned in the cheque but not the date of drawal of the cheque. In view thereof the contention of the learned Counsel for the petitioner that the complaint is liable to be quashed because the cheque dated 28-3-2001, actually drawn on 7-7-2000, was presented into the Bank only on 28-3-2001 beyond six months from 7-7-2000 is not tenable, because the six months period has to be reckoned only from 28-3-2001 the date mentioned on the cheque. Since the cheque was presented in the Bank on 28-3-2001 itself, there is no infraction of proviso (a) to Section 138 of the Act and so i find no grounds to quash the complaint. Therefore, the petition is dismissed.