- (1.) The present revisional application is for quashing of a proceeding being case No. C/1412/97 pending in the Court of learned Metropolitan Magistrate, 15th Court, Calcutta under Section 138 of the Negotiable Instruments Act, 1881.
(2.) On or about 15-3-1997 the petitioner issued several cheques in favour of 13 co-owners allocation in respect of premises No. 9, Pankajini Chatterjee Road and the said cheques were post dated cheques dated 31-3-1997. The aggregate amount of the said cheques was Rs. 18,65,828/-. The said cheques were presented for encashment with the banker of the complainant and the same were dishonoured. Thereafter demand notice was sent demanding the cheque amount. On refusal to make the payment of the cheque amount the aforesaid proceeding was initiated against the accused petitioner.
(3.) The only point raised by the learned Advocate of the petitioner is that a post datd cheque is a bill of exchange and it cannot be considered as a cheque within the meaning of Section 138 of the N.I. Act. A cheque is an instrument which is payable on demand. A post dated cheque, which is not payable, on demand, is not cheque within the meaning of Section 138 of the N.I. Act. In support of his contention Mr. Bose the learned Advocate of the petitioner relies on a judgment of the Hon'ble Apex Court reported in 1993 Cal Cri LR (SC) 165 (Anil Kumar Sawhney v. Gulshan Rai). In the said judgment it was held by the Hon'ble Supreme Court as follows :- "Section 5 and 6 of the Act define "Bill of Exchange" and "Cheque". A "Bill of Exchange" is a negotiable instrument in writing containing an instruction to a third party to pay a stated sum of money at a designated future date or on demand. A "cheque" on the other hand is a bill of exchange drawn on a bank by the holder of an account payable on demand. Thus a "cheque" under Section 6 of the Act is also a bill of exchange but it is drawn on a banker and is payable on demand. It is thus obvious that bill of exchange even though 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, it becomes a "cheque" when it is payable on demand. The post dated cheque is not payable till the date which is shown on the face of the said document. It will only become cheque on the date shown on it and prior to that it remains a bill of exchange under Section 5 of the Act. As a bill of exchange a postdated cheque remains negotiable but it will not become a "cheque" till the date when it becomes "payable on demand."" "It is clear from Section 19 that a "cheque" is an instrument which is payable on demand. A post dated cheque, which is not payable on demand till a particular date, is not cheque in the eyes of law till the date of it becomes payable on demand." "An offence to be made out under the substantive provisions of Section 138 of the Act it is mandatory that the cheque is 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. It is the cheque drawn which has to be presented to the bank within the peeriods specified therein., When a postdated cheque is written or drawn it is only a bill of exchange and as such the provisions of Section 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 of has to be reckoned for the purposes of Section 138(a) from the said date . The net result is that a post dated 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 Section 138(a) would squarely be attracted. In the present case the postdated cheques were drawn in March, 1990 but they became "cheque" in the year 1991 on the dates shown therein. The period of six months, therefore, has to be reckoned from the dates mentioned on the face of the cheques.";