Order 1. Common questions of fact and law arise in these three cases. Hence, they are heard together and disposed by this common order. 2. Legal puzzles arising herein for determination are as follows: i. Whether dishonour of a cheque, drawn by a person during minority for discharging a debt or liability towards another, will invite an offence under Section 138 of the Negotiable Instruments Act, 1881Rs. ii. Does it make any difference if the cheque was a post-dated one and its dishonour takes place after the quondam minor attained majority Rs. 3. In order to find out answers to these questions, we shall consider the skeletal facts in these cases. Petitioner in these cases are the accused in three different private complaints filed by the 1st respondent before the learned Judicial First Class Magistrate, Nilambur. In all the three complaints, the offence alleged against the petitioner is one under Section 138 of the Negotiable Instruments Act, 1881 (in short, "the NI Act"). 1st respondent/complainant is the Managing Partner of a firm, conducting a business by name Persian Jewellery, Nilambur. Petitioner's mother was an employee in the said firm. While so, the petitioner, her mother and brother approached the 1st respondent seeking financial help for the petitioner to pursue study in an engineering college in Tamil Nadu. They required about Rs.2,50,000/-as fees for admission to the college and the hostel. 1st respondent paid Rs.1,50,000/-to the petitioner for meeting the initial expenses. Thereafter, on 08.08.2010, the petitioner again approached the 1st respondent and requested to lend Rs.1,00,000/-more for her study. Petitioner made the 1st respondent believe that the entire amount borrowed from him would be repaid before 10.01.2011 as she was sure of getting the education loan applied for. On 12.07.2010, the petitioner, her brother and mother again approached the 1st respondent and requested for advancing money. As agreed earlier, an agreement was executed between the parties. As per the terms of the agreement the total amount of Rs.2,50,000/- demanded and received by the petitioner, including Rs.1,00,000/-later received by her, should be repaid on or before 10.01.2011. It was further agreed that if the petitioner did not repay the money, a portion of the property belonging to them should be conveyed to the 1st respondent. As per the terms of the agreement the total amount of Rs.2,50,000/- demanded and received by the petitioner, including Rs.1,00,000/-later received by her, should be repaid on or before 10.01.2011. It was further agreed that if the petitioner did not repay the money, a portion of the property belonging to them should be conveyed to the 1st respondent. On that assurance, on 08.08.2010, 1st respondent advanced to the petitioner a further sum of Rs.1,00,000/-, thereby she got the entire amount of Rs.2,50,000/-from the 1st respondent. However, the petitioner did not fulfil her promise to pay back money promptly. Later, on 14.01.2011, the petitioner with her brother and mother again approached the 1st respondent and the petitioner acknowledged her liability. It was represented by the petitioner that she got the education loan sanctioned. Petitioner paid Rs.10,000/-to the 1st respondent on the said date. Thereafter three cheques were issued for the remaining liability of Rs.2,40,000/-on 14.01.2011 by the petitioner to the 1st respondent. One cheque was for Rs.1,50,000/. Another one was for Rs.80,000/- and yet another one for Rs.10,000/-. All of them were drawn on 14.01.2011 with a post date 31.01.2011. When the cheques were presented for collection, they were dishonoured due to insufficiency of funds in the account of the petitioner. 1st respondent caused to issue the statutory notices. Even after receiving notices, the amounts were not paid. Hence, three prosecutions were launched. 4. Main contention raised by the petitioner is that the complaints are not legally maintainable, because the petitioner, being a minor on the date of drawal of the cheques, cannot be prosecuted as she was incompetent to bind herself at that time by virtue of Section 26 NI Act. 5. It is seen from the records that the petitioner filed applications before the trial court in all the cases claiming the benefit of Section 7 of the Juvenile Justice (Care and Protection of Children) Act, 2000 contending that she was a minor on the date of the alleged commission of offence. Those applications were considered by the learned Magistrate, but all of them were dismissed. Now she challenges the maintainability of the complaints on other legal grounds. 6. Heard Shri P.Venugopal, learned counsel for the petitioner and Shri P.Samsudin, learned counsel for the 1st respondent. Learned Public Prosecutor is also heard. 7. According to Shri Venugopal, the prosecution is a misconceived legal action. Now she challenges the maintainability of the complaints on other legal grounds. 6. Heard Shri P.Venugopal, learned counsel for the petitioner and Shri P.Samsudin, learned counsel for the 1st respondent. Learned Public Prosecutor is also heard. 7. According to Shri Venugopal, the prosecution is a misconceived legal action. Section 26 NI Act, though permits a minor to draw, endorse, deliver and negotiate a promissory note, bill of exchange or cheque, makes it clear that such instrument shall never bind the minor. For clarity, Section 26 NI Act is reproduced hereunder: "Capacity to make, etc., promissory notes, etc.-Every person capable of contracting, according to the law to which he is subject, may bind himself and be bound by the making, drawing, acceptance, indorsement, delivery and negotiation of a promissory note, bill of exchange or cheque. Minor - A minor may draw, indorse, deliver and negotiate such instruments so as to bind all parties except himself. Nothing herein contained shall be deemed to empower a corporation to make, indorse or accept such instruments except in cases in which, under the law for the time being in force, they are so empowered." 8. Section 11 of the Indian Contract Act, 1872 specifies the persons competent to contract. One of the main requirements therein is that the contracting party must be of the age of majority according to the law to which he is subject. It is provided by Section 3 of the Indian Majority Act, 1875 that all persons domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before. It can legitimately be presumed that the framers of the NI Act must not have perceived the possibility of incorporating a provision like Section 138 in the statute in future, creating a statutory offence for the dishonour of a cheque. Stated differently, dishonour of a cheque was conceived as a civil wrong at the time when the NI Act was enacted. Later, Section 138 and other affiliated provisions were inserted in the NI Act by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 with effect from 01.04.1989. Stated differently, dishonour of a cheque was conceived as a civil wrong at the time when the NI Act was enacted. Later, Section 138 and other affiliated provisions were inserted in the NI Act by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 with effect from 01.04.1989. Now it becomes, therefore, a necessity to find out whether there is any material change in law in case a cheque drawn by a minor is dishonoured for want of funds in his account and also whether he can be held liable for the offence under Section 138 NI Act in such a situation. Very pertinent aspect to be noted here is that what is made punishable under Section 138 NI Act is the dishonour of a cheque drawn by a person in the name of another for the discharge, in whole or in part, of any debt or other liability(under the supplied for emphasis). Then the quintessential question will be whether a minor is capable of incurring any debt or liability?. 9. I shall deal with the liability of a minor, in case a cheque drawn by him is dishonoured, as per the law stated in Section 26 NI Act. On a reading of Section 26 NI Act, it is crystal clear that a minor, like any other person capable of contracting, may draw, indorse, deliver and negotiate a promissory note, bill of exchange or cheque. Such instrument so drawn, indorsed, delivered and negotiated by the minor is capable of binding all parties, except the minor himself. It gives a protection or an insulation to the minor from binding himself when he is drawing, indorsing or delivering or negotiating a negotiable instrument. Privy Council considered an appeal from a decree of a Bench of three Honourable Judges of the High Court of Calcutta in Mohori Bibee v. Dharmodas Ghose (Vol.XXX ILR Calcutta 539). Facts in the case in brief are that on 20.07.1895, the respondent Dharmodas Ghose executed a mortgage in favour of Brahmo Dutt, a money lender to secure repayment of Rs.20,000/-with interest. At that time, the respondent Dharmodas Ghose was an infant (as described in the decision for a minor). Facts in the case in brief are that on 20.07.1895, the respondent Dharmodas Ghose executed a mortgage in favour of Brahmo Dutt, a money lender to secure repayment of Rs.20,000/-with interest. At that time, the respondent Dharmodas Ghose was an infant (as described in the decision for a minor). On 10.09.1895, the respondent through his mother as next friend commenced an action against Brahmo Dutt stating that he was under aged when he executed the mortgage and prayed for a declaration that it was void and inoperative and should be delivered upon to be cancelled. The defendant Brahmo Dutt put in a defence that the respondent was of full age when he executed the mortgage, that even if he was a minor, the declaration of his age was fraudulently made to deceive the defendant and, therefore, he was disentitled to claim any relief. Considering all the issues, the Privy Council held thus: "On the true construction of the Contract Act (IX of 1872) a person, who by reason of infancy is incompetent to contract, cannot make a contract within the meaning of the Act. A mortgage, therefore, made by a minor is void; and a money-lender who has advanced money to a minor on the security of the mortgage is not entitled to repayment of the money on a decree being made declaring the mortgage invalid; sections 64 and 65 of the Contract Act being based on there being a contract between competent parties, and being inapplicable to a case where there is not, and could not have been, any contract at all." 10. Whether the immunity provided by Section 26 NI Act excludes the obligation of a minor to restitute the benefit derived by him in the transaction from the other party was contested in many cases. Although the question was argued before the Judicial Committee in Mohori Bibee's case (supra), their Lordships did not give any decision on it. In another decision, viz., Nawab Sadiq v. Jai Kishori (55 MLJ 88 (PC)), their Lordships unequivocally held that a contract entered into by a minor is a nullity. Regarding the right of restitution, there is one view that it can arise only if the person entering into the transaction was not aware of the fact of minority and there was some representation by the minor as to his age with a view to deceive the other party. Regarding the right of restitution, there is one view that it can arise only if the person entering into the transaction was not aware of the fact of minority and there was some representation by the minor as to his age with a view to deceive the other party. (see Hari Mohan v. Dulu Miya - AIR 1935 Calcutta 198). Yet another view expressed by courts is that even in such a situation, the minor is not liable to restitute. The decision in Gokeda Lateharao v. Viswanadham Bhimayya (AIR 1956 Andhra Pradesh 182) is of relevance in this context. The appellant therein executed two promissory notes during his minority. It is alleged that he made a fraudulent representation to the respondent that he was a major. When the suit was filed to recover money, the appellant, inter alia, contended that the promissory notes were not supported by consideration and they were not enforceable as he was a minor on the date of their execution. Subba Rao, C.J. summarised the law as follows: "43. The law may be briefly summarised. A contract entered into with a minor is a nullity for want of legal competency. Except otherwise provided by statute, it is not enforceable and it does not give rise to any rights or liabilities. 44. It is non est. It follows from this legal position that a person, who parted with his goods can trace them into the hands of the quondam minor and recover them back in specie, for he has not lost his title to them. But he cannot seek to recover their price or damages for, if allowed, he would be indirectly asking for the enforcement of the contract and to recover damages for the breach. Nor can a person who lends money to such a minor, recover it. If allowed to do so, the Court would be enforcing a contract of loan. The English decisions graphically describe this position as "restitution stops where repayment begins". But, there is another principle of equity, namely, that one who seeks equity must do equity. If a quondam minor as plaintiff seeks relief from a Court on the basis that the contract was void, the Court could refuse that relief unless he has made good his fraudulent representation. But, there is another principle of equity, namely, that one who seeks equity must do equity. If a quondam minor as plaintiff seeks relief from a Court on the basis that the contract was void, the Court could refuse that relief unless he has made good his fraudulent representation. If he seeks to recover through Court goods which he parted with after receiving the consideration, the Court will not help him except by imposing the condition of returning the consideration amount. The principle is embodied in Ss.39 and 41, Specific Relief Act. Apart from the fact it statutorily recognises a well-settled principle of equity, it is not open to extend the limits of the operation of the provisions by stretching the language or otherwise adding to its contents. When a statute specifically provides for the case of a plaintiff seeking to cancel a document, it is not permissible to invoke other equitable principles, which would make the provisions nugatory. Further, this will enable the parties to circumvent the prohibition against dealing with minors and by clever drafting of pleadings, help them to indirectly enforce a contract which is a nullity. Nor can S.65 be invoked as it pre-supposes the existence of a contract between persons with legal competency." Hence, it is clear that a contract in which one of the parties is a minor cannot be enforced against him as it is void due to minor's lack of capacity to contract. 11. Now, the question remaining is whether there is any difference if a post dated cheque was drawn by a minor payable after the coming of his age. Halsbury's Laws in India, Vol. IV is cited by the learned counsel for the petitioner to contend a proposition that a post dated cheque drawn by a minor payable after his coming of age is on the same footing as a cheque drawn by the minor dated before his coming of age. Similarly, a bill or note given by a person after attaining majority in renewal of a bill or note executed by him during his minority is void, unless there is some new consideration. 12. Similarly, a bill or note given by a person after attaining majority in renewal of a bill or note executed by him during his minority is void, unless there is some new consideration. 12. The High Court of Judicature, Allahabad in Suraj Narain v. Sukhu Ahir and another (ILR Vol.LI Allahabad 164) considered a case where a minor borrowed a sum of money executing a simple bond and after attaining majority, he executed a second bond in respect of the loan then existed plus the interest thereon. The question raised was whether the consideration received by a person during his minority could be a good consideration for a fresh promise after attaining majority. Per majority, it was held that in consideration of the first advance made by the creditor, he obtained a promissory note from the minor and thereafter there was no longer any subsisting consideration, which would support a subsequent promise to pay after attaining majority. Such a fresh promise, if no further advance is taken, is totally without consideration and, therefore, void. The same view was taken by the Madras High Court in Indran Ramaswami Pandia Thalavar v. Anthappa Chettiar and others (Vol.XVI MLJ 422). It is held that a promissory note executed by a person on attaining majority in settlement of an earlier one executed by him while a minor, in consideration of his having received from the obligee a certain sum of money when he was a minor, is bad for want of consideration. 13. Learned counsel for the 1st respondent relying on Section 68 of the Contract Act, 1872 contended that the cheque is supported by consideration and, therefore, by applying the principle of law in the said Section, it should be seen that the petitioner issued the cheque in discharge of a legally enforceable debt. Section 68 of the Indian Contract Act is excerpted hereunder for clarity: "Claim for necessaries supplied to person incapable of contracting, or on his account.-If a person, incapable of entering into a contract, or any one whom he is legally bound to support, is supplied by another person with necessaries suited to his condition in life, the person who has furnished such supplies is entitled to be reimbursed from the property of such incapable person. Illustrations (a) A supplies B, a lunatic, with necessaries suitable to his condition in life. A is entitled to be reimbursed from B's property. Illustrations (a) A supplies B, a lunatic, with necessaries suitable to his condition in life. A is entitled to be reimbursed from B's property. (b) A supplies the wife and children of B, a lunatic, with necessaries suitable to their condition in life. A is entitled to be reimbursed from B's property." The principle underlying in the Section is that where a person incapable of entering into a contract (it includes a minor also) or any other person whom he is legally bound to support, is supplied by another person with necessaries, the supplier is entitled to be reimbursed out of the property of the incapable person. The liability here is not to pay the agreed price, but to reimburse. In the case of a minor, he is not personally liable, but his property will be liable. The Section applies to minors and also to persons of unsound mind. That is evident from the illustrations given to the Section. It is, therefore, clear that the Section will not apply where necessaries have been supplied to someone, who is a person competent to contract. Even though by virtue of the Section it can be contended that the petitioner's liability to reimburse the 1st respondent may be enforced against her property, the law in the above Section does not enable the 1st respondent to seek prosecution of the erstwhile minor. 14. The conclusion that can be drawn from the above discussion is that a contract entered into with a minor, being a void contract, cannot be enforced against him and that a minor at any rate cannot be personally held liable under civil law for the dishonour of a cheque drawn, indorsed, delivered or negotiated by him. 15. Now, we shall consider whether the minor can be held criminally liable for the statutory offence under Section 138 of the NI Act. Celebrated commentaries on the Negotiable Instruments Act by learned authors Bhashyam and Adiga (18th Edition - Page No.743) shows the salient features and ingredients of Section 138 NI Act as follows: "Ingredients of the offence.-To constitute an offence under section 138 of Negotiable Instruments Act the following ingredients need to be fulfilled: 1. Cheque should have been issued for the discharge, in whole or part, of any debt or other liability. 2. Cheque should have been issued for the discharge, in whole or part, of any debt or other liability. 2. The cheque should have been presented within the period of six months or within the period of its validity, whichever is earlier. Note.-The cheque may be presented any number of times for collection within its validity. 3. The payee or the holder in due course should have issued a notice in writing to the drawer within thirty (fifteen prior to 2002 amendments) days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. 4. After the receipt of the said notice by the payee or the holder in due course, the drawer should have failed to pay the cheque amount within fifteen days of the receipt of the said notice. Note.- Notice of dishonour is unnecessary when the party entitled to notice cannot after due search be found (See section 98, Negotiable Instruments Act). 5. On non-payment of the amount due on the dishonoured cheque within fifteen days of the receipt of the notice by the drawer, the complaint should have been filed within one month from the date of expiry of the grace time of fifteen days, before the Metropolitan Magistrate or not below the rank of a Judicial Magistrate of the first class. The cognizance of a complaint may be taken by the Court after the prescribed period, if the complaint satisfies the Court that he had sufficient cause for not making a complaint within such period. 6. The offence under this Act is compoundable (inserted by the 2002 Amendment Act)." It can only be presumed that the legislature was fully conscious of the existence of Section 26 in the NI Act when it incorporated Chapter XVII in the statute containing new provisions, particularly Section 138. Hence, going by the rule of interpretation of statutes, definitely it has to be seen that both Section 26 and Section 138 of the NI Act must be construed harmoniously. Even the location and placement of Section 138 NI Act assume importance. 16. Before going into other legal aspects, it will be beneficial to restate the relevant dates. The cheques in all the cases were drawn on 14.01.2011. Admittedly all the three cheques bore the date 31.01.2011 on their face. Even the location and placement of Section 138 NI Act assume importance. 16. Before going into other legal aspects, it will be beneficial to restate the relevant dates. The cheques in all the cases were drawn on 14.01.2011. Admittedly all the three cheques bore the date 31.01.2011 on their face. The orders passed by the learned Magistrate would show that there was a dispute regarding the date of birth of the petitioner. Her school records showed the date of birth as 08.07.1993, whereas the birth certificate issued by the concerned Grama Panchayat indicated that the petitioner was born on 22.01.1993. 17. Section 35 of the Evidence Act deals with the relevancy of entry in public record or an electronic record made in performance of duty. Interpreting that provision, a Constitution Bench of the Supreme Court in Brij Mohan Singh v. Priya Brat Narain Sinha ( AIR 1965 SC 282 ) ruled on the evidentiary value of entries relating to date of birth in school admission register in the following words: "In actual life it often happens that persons give false age of the boy at the time of his admission to a school so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. The Court of fact cannot ignore this fact while assessing the value of the entry and it would be improper for the court to base any conclusion on the basis of the entry, when it is alleged that the entry was made upon false information supplied with the above motive." The principle laid down by the Apex Court in Birad Mal Singhvi v. Anand Purohit ( AIR 1988 SC 1796 ) reads as follows: "To render a document admissible under S.35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact, and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under S. 35 of the Act but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded." 18. The birth certificate is issued in consonance with a register kept by the officer concerned as per the prescription of a statute. Therefore, in the absence of any reason to find that the date of birth of the petitioner shown in the birth register is wrong, it gets precedence over the entry in the school register. Certified copy of the entry in the birth register mentioned by an official in discharge of his official duty is admissible under Section 35 of the Evidence Act and it is not necessary to examine the official (see - Harpal Singh v. State of H.P. - AIR 1981 SC 361 ) Hence, it can be safely concluded that the date of birth of the petitioner is 22.01.1993. 19. As the date of birth of the petitioner is 22.01.1993, it can be seen that she had attained majority on 22.01.2011. Therefore, on the date of drawal of the three cheques, ie., on 14.01.2011, the petitioner was a minor. Question that falls for decision is whether the petitioner was legally competent to incur any liability on the date of drawal of the said cheques Rs. The answer can only be an emphatic negative. From the discussion above made, it is evident that a minor is incompetent to bind himself/herself in any way if he/she draws, indorses, delivers or negotiates a cheque. Further, the offence under Section 138 NI Act will be attracted only on dishonour of a cheque drawn by a person on an account maintained by him with the banker for payment of any amount of money to another person to discharge, in whole or in part, any debt or liability. It is unchallengeable that during minority the petitioner could not have incurred any debt or liability so as to bind herself. Therefore, the essential ingredient to attract the offence is lacking in the fact situation. For that primary reason, it can be held that the petitioner cannot be prosecuted for an offence under Section 138 NI Act. 20. It is unchallengeable that during minority the petitioner could not have incurred any debt or liability so as to bind herself. Therefore, the essential ingredient to attract the offence is lacking in the fact situation. For that primary reason, it can be held that the petitioner cannot be prosecuted for an offence under Section 138 NI Act. 20. Next question is, whether the quondam minor can be held liable for dishonour of a cheque, drawn by him/her, for want of funds in the account, if the cheque bears a date subsequent to his/her attaining majority and further the dishonour takes place after he/she attained majority Rs. For this question also, the answer can only be in the negative. Indisputable proposition is that a cheque defined under Section 6 NI Act is also a bill of exchange, but it is drawn on a banker and it is payable on demand. It is, thus, obvious that even though a bill of exchange is drawn on a banker, if it is not payable on demand, it is not a cheque. A postdated cheque is only a bill of exchange when it is written or drawn and it becomes a cheque when it is payable on demand. A postdated cheque is not payable till the date, which is shown on the face of the document. (see Ashok Yeshwant Badeve v. Surendra Madhavrao Nighojakar and another (2001 Cri.L.J. 1674 (SC)) and Shri Ishar Alloys Steels Ltd. v. Jayaswals NECO Ltd.(2001 Cri.L.J. 1250 (SC)). In the normal course, dishonour of a postdated cheque, after it has become a cheque in the eye of law, would have attracted the offence under Section 138 NI Act. Nevertheless, the law pronounced distinctly in Section 26 NI Act makes it clear that though a minor can draw, indorse, deliver and negotiate a promissory note, cheque, etc. so as to bind all parties, it excludes the minor's capacity to bind himself. In other words, the said provision insulates the minor from binding himself from the consequences of drawing, indorsing, delivering and negotiating a negotiable instrument. On recapitulating the principles discussed above, I arrive at the following findings: A minor, who had drawn a cheque, which is dishonoured for want of funds in the account after his/her attaining majority, is exempted from prosecution because the cheque is one without consideration. On recapitulating the principles discussed above, I arrive at the following findings: A minor, who had drawn a cheque, which is dishonoured for want of funds in the account after his/her attaining majority, is exempted from prosecution because the cheque is one without consideration. Besides, the minor at the time when the cheque was drawn was incapable of incurring any debt or liability, which could have been legally enforced against him/her, in spite of the fact that he/she attained majority on the date of dishonour of the cheque. The essential requirement in Section 138 NI Act that the dishonoured cheque must be one issued for discharge of a debt or liability is also not satisfied in such cases. I also find that the quondam minor becoming a major on the date of dishonour of cheque is of no consequence, if the subject matter is a cheque drawn by him during his/her minority. Hence, I find that the prosecution has to fail on each count. In the result, all the petitions are allowed. The complaints in S.T.Nos.806, 807 and 808 of 2011 pending before the Judicial First Class Magistrate Court, Nilambur are hereby quashed. All pending interlocutory applications will stand dismissed.