Judgment :- This Appeal has been filed by the complainant against the Judgment dated 23.07.1997 made in C.A.No.29 of 1996 of the learned I Additional Sessions Judge, Tirunelveli reversing the judgment dated 19.03.1996 made in C.C.No.35 of 1995 by the learned Judicial Magistrate No.V, Tirunelveli. 2. Thecomplainants case is briefly as follows: i)The complainant is doing Beedi Wholesale business and having its registered office at No.4G, /salai Street, Sindupoondurai, Tirunelveli. the son of the accused Palani Andavar was working as an accountant in the complainants sales Depot at Madras. During his tenure, he misappropriated the companys money to the tune of Rs.3,12,072/- Palani Andavar admitted his criminal act during the enquiry conducted by the company and the said Palani Andavar and the accused gave an undertaking in writing to repay the amount to the company. ii) As a part settlement, the accused issued a cheque bearing No.SCBL 0199200 dated 22.10.1994 for a sum of Rs.40,000/- drawn at Canara Bank in favour of the complainant for the criminal acts committed by his son Palani Andavar. When the complainant presented the said cheque on 18.11.1994 it was returned as unpaid on 28.11.1004 due to insufficiency of funds. Hence, the complainant, within 15 days from the date of receipt of information from the bank regarding the return of the cheque, sent notices to both the accused and his son through his lawyer by RPAD and also under Certificate of posting, calling upon them to pay the amount within 15 days from the date of receipt of notice. There was no response for the said notice. Since the accused had issued the cheque knowing well of the consequences thereof, he has committed an offence under Section 138 of Negotiable Instruments Act and 420 I.P.C. and he has filed a complaint within one month from the date of expiry of 15 days grace time given under the notice. The accused must be punished with maximum sentence. 3. When the respondent was questioned under Section 313 Cr.P.C. in respect of the incriminating materials appearing against him through the evidence adduced by the complainant, the accused has come forward with the version of total denial and he has stated that he has been falsely implicated in this case. 4. Before the trial Court, P.Ws 1 and 2 were examined. Exs.P.1 to P.10 were marked. 5. 4. Before the trial Court, P.Ws 1 and 2 were examined. Exs.P.1 to P.10 were marked. 5. On consideration of evidence on record, learned Judicial Magistrate found the accused guilty for the offence under Section 138 N.I Act and sentenced him to undergo R.I. for three months and to pay a fine of Rs.5,000/- in default to undergo S.I. for a period of one months. 6. Aggrieved by the said judgment, the accused preferred an appeal in C.A.No.29 of 1996 before the I Additional Sessions Judge, Tirunelveli, who reversed the judgment of the trial Judge and allowed the appeal acquitting the accused. 7. Challenging the said appellate Court judgment, the complainant has filed the present appeal. 8. The point for determination is Whether the appeal is maintainable? 9. The Point: The appellant is the complainant. The respondent/accused is the father of Palani Andavar who had misappropriated the amount while he was working as Accountant in the complainants Beedi company. 10. Palani Andavar, the Accountant of the complainants Beedi company has misappropriated the money of the company to the tune of Rs.3, 12, 072/-for which an enquiry was conducted by the company and Palani Andavar has admitted that he had misappropriated the above said amount. He and his father, the respondent herein gave an undertaking Ex.P.9, on 22.4.1993 to repay the amount due tot he company. In that undertaking, the respondent has categorically admitted the offence committed by his son and agreed to repay the amount and also issued a cheque Ex.P.1 for a sum of Rs.40,000/- dated 22.10.1994 drawn at Canara Bank, Kombai, Madurai District. When the cheque was presented through Indian Bank on 18.11.1994 for collection under Ex.P.2, the complainant had received intimation Ex.P.3 that the cheque was returned for "insufficient funds". Then he sent a notice dated 13.12.1994 Ex.P.4 through his counsel demanding payment of the amount and the respondent under Ex.P.6, the acknowledgment, received it. A copy of the said notice was also sent to Palani Andavar under Ex.P.5. But the same returned with an endorsement unclaimed. The respondent herein did not send any reply. He has not also chosen to repay the amount as claimed by the complainant. But, in the letter Ex.P.8, written by the respondent herein, he has requested the complainant not to present the cheque for collection. As the Bank for insufficient funds returned the cheque, the complainant had lodged a complaint. The respondent herein did not send any reply. He has not also chosen to repay the amount as claimed by the complainant. But, in the letter Ex.P.8, written by the respondent herein, he has requested the complainant not to present the cheque for collection. As the Bank for insufficient funds returned the cheque, the complainant had lodged a complaint. He authorised one V.Sivaraman, the Accountant in his company to conduct the proceedings on his behalf under Ex.P.10. 11. P.W.1, Sivaraman, the Accountant in the complainants company spoke about the case of the complainant. P.W.2, the Manager of the Indian Bank, Tirunelveli spoke about the memo Ex.P.2 issued by the Bank to the complainant. His evidence would show that the cheque issued by the respondent was dishonoured. 12. No doubt, in this case, the son of the respondent misappropriated the companys money to the tune of Rs.3,12,072/- and the father admitting the liability of his son, had given an undertaking to discharge the said amount under Ex.P.9. Palani Andavar admitted his liability during enquiry conducted by the company. 13. Learned counsel for the appellant argued that the lower appellate Court has not considered the liability and it disposed of the appeal only relying on the date of issuance of cheque. So, he must be given an opportunity to raise the plea of liability. A perusal of the judgment would show that before the first appellate Court, the respondent/accused raised the plea only regarding the date of cheque and the same was allowed. The respondent has not raised any other plea before the first appellate Court. While that being so, the respondent cannot say that he was not given any opportunity to raise the plea of liability in the first appellate Court. 14. Learned counsel for the appellant, submitted that the father undertook the liability for repayment of the amount misappropriated by his son. Learned counsel for the appellant relied on 2001 Crl.L.J.2392 (P.R.Shankar Rao VS Joseph and Joseph Regis Kalingarayar) wherein it was held as follows: "The requirement for an offence to be made out under Section 138 N.I.Act is that the cheque must be drawn "for the discharge, in whole or in part, of any debt or other liability". This section does not say that the cheques should have been drawn for the discharges of any debt or other liability of the drawer towards the payee. This section does not say that the cheques should have been drawn for the discharges of any debt or other liability of the drawer towards the payee. This Section does not say that the cheques should have been drawn for the discharges of any debt or other liability of the drawer towards the payee. Even in Section 139 of the Negotiable Instruments Act, by which a legal presumption is created, the Parliament has only fixed the presumption that the cheque was issued "for the discharge, in whole or in part, or any debt or other liability" This would mean that the debt or other liability includes the due from any other person. It is not necessary that the debt or liability should be due from the drawer himself. It can be issued for the discharge of any other mans debt or liability. Legally enforceable debt or liability would have a reference to the nature of the debt or liability and not the person against whom the debt or liability can be enforced. For the purpose of this Section 138 N.I.Act it is immaterial that the cheque was issued for discharge of his own debt or liability as it can be issued for discharge of another mans debt or liability." 15. Learned counsel for the respondent relied on the decision reported in 2002 Crl.L.J.3935 (I.C.D.S Ltd VS Beena Shabeer and another) and argued that the co-extensive liability of the guarantor and the principal debtor is totally out of the purview of Section 138 N.I.Act. In the above case, the Supreme Court has held as follows: "The issue as regards the co-extensive liability of the guarantor and the principal debtor is totally out of the purview of S.138 neither the same calls for any discussion therein. The language of the Statute depicts the intent of the law-makers to the effect that whenever there is a default on the part of one in favour of another and in the event a cheque is issued in discharge of any debt or other liability there cannot be any restriction or embargo in the matter of application of the provisions of S.138. Any cheque other liability are the two key expressions which stands as clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the Statute. Ay contra interpretation would defeat the intent of the Legislature." 16. Any cheque other liability are the two key expressions which stands as clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the Statute. Ay contra interpretation would defeat the intent of the Legislature." 16. In 2002 (4) Crimes 32 (Gopi VS Sudarsanan) it was held as follows: 17. In1999 (1) Law Weekly (Crl) 395 (N.Veidyanathan/Deepika Milk Marketing, rep. by its Proprietrix Mrs.Revathi Vaidyanathan VS M/s. Dodia Dairy Limited rep. by its Accounts Executive, R.Swaminathan) it was held as follows: "This position of law also has already been settled by this Court reported in 1992(2) K.L.T 40 (Krishna Bai VS. Arti Press) and by the High Court of Kerala reported in 11- 1994(1) Crimes 388 (Alexander Vs Joseph Chacko) It is held in the said decisions that for the purpose of Section 138 of the Negotiable Instruments Act, it is immaterial that the cheque was issued for discharge of his own debt or liability as it can be issued for discharge of another mans debt or liability." 18. If the case on hand is analysed in the light of the above said decisions, it is clear that the father of Palani Andavar undertook to pay the liability to pay the debt and issued a cheque. But the cheque was returned by the Banker. So there is liability as per Section 138 N I Act. Hence, the contention of the learned counsel for the respondent that there is no liability is not acceptable. 19. The respondent claimed that the cheque was handed over on earlier date i.e.22.04.1993 under Ex.P.7 and the cheque was presented on 22.04.1994 for collection, and the cheque was not presented within six months from the date of issuance of the said cheque and the learned appellate Court has come to the conclusion that the complainant was not entitled to encash the cheque. 20. In this regard, learned counsel relied on the decision reported in (2001) 3 Supreme Court Cases 726 (Ashok Yeshwant Badave VS Surendra Madhavrao Nighojakar and another) and argued that six months period has to be calculated from the date mentioned on the face of cheque and not from any earlier date when drawer actually gave cheque to drawee. 20. In this regard, learned counsel relied on the decision reported in (2001) 3 Supreme Court Cases 726 (Ashok Yeshwant Badave VS Surendra Madhavrao Nighojakar and another) and argued that six months period has to be calculated from the date mentioned on the face of cheque and not from any earlier date when drawer actually gave cheque to drawee. In the said decision, it was held as follows: "For prosecuting a person for an offence under Section 138 of the Negotiable Instruments Act it is inevitable that the cheque is presented to the banker within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier. 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. The post dated cheque becomes a cheque within the meaning of Section 138 of the Act on the date which is 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." 21. In 1994 M.L.J.300 (N.Sivalingam and another Vs A.V.Chandraiyer, Managing Partner, M/S.Sarathy Finance, Salem) it was held as follows: "This Section does not in any way debar a person from taking up another persons liability or insist that the cheque should be one drawn to discharge the liability of the drawer." "One of the conditions for the applicability of Sec.138 of the Negotiable Instruments Act is that the cheque should have 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. What clause (a) of the Proviso to Sec.138 contemplates is date of presentation of the cheque for payment and not the date of dishonour. It is the cheque drawn which has to be presented to the Bank within the period specified therein. When a post dated cheque is written and drawn, it is only a bill of exchange and as such the provisions of Sec.138(a) are not applicable to the said instrument. It is the cheque drawn which has to be presented to the Bank within the period specified therein. When a post dated cheque is written and drawn, it is only a bill of exchange and as such the provisions of Sec.138(a) are not applicable to the said instrument. The post-dated cheque becomes a cheque under the Act on the date which is written on the said cheque and the six months period has to be reckoned for the purposes, if Sec.138(a) from the said date. One of the main ingredients of the offence under Sec.138 of the Act is the return of the cheque by the bank unpaid. Till the time the cheque is returned by the Bank unpaid, no offence under Sec.138 is made out. A post-dated cheque cannot be presented before the Bank and as such the question of its return would not arise. It is only when the post-dated cheque becomes a cheque with effect from the date shown on the face of the said cheque, the provisions of Sec.138 come into play. The net result is that a post-dated cheque remains a bill of exchange till the date written on it. With effect from the date shown on the face of the said cheque it becomes a cheque under the Act and the provisions of Sec.138(a) would squarely be attracted." 22. In the present case, post-dated cheque dated 22.10.94 was drawn on 22.4.1993 and the cheque becomes payable only on 22.10.1994. The period of six months has to be reckoned from the date mentioned on the face of the cheque. So, as per the decision of the Honble Supreme Court, I find that the cheque was presented in time. Hence, the finding of the lower appellate Court is not correct and the same is liable to be set aside. 23. On a careful consideration of the available evidence and the submissions made by both parties, I find that the complainant has proved his case satisfactorily. Hence, The appeal is allowed. The Judgment dated 23.07.1997 made in C.A.No. 29 of 1996 by the learned I Additional Sessions Judge, Tirunelveli reversing the judgment dated 19.03.1996 made in C.C.No.35 of 1995 by the learned Judicial Magistrate No.V, Tirunelveli is set aside. The judgment of the trial Judge (Judicial Magistrate No.V), Tirunelveli is confirmed.