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TMI Blog2001 (3) TMI 1015X X X X Extracts X X X X X X X X Extracts X X X X ..... ation filed by the appellant upholding an order passed by a Sessions Court in revision refusing to interfere with the order passed by a Chief Judicial Magistrate taking cognizance and issuing process against the appellant for the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as `the Act). Surendra Madhavrao Nighojkar respondent No. 1 filed a petition of complaint in the Court of Chief Judicial Magistrate, Satara on 2.9.1996 for prosecution of the appellant under Section 138 of the Act besides Section 420 of the Penal Code which was registered as Criminal Case No. 11348/96. Case of the complainant in, short, is that on 4.7.1993 an agreement to sell was executed by the complainant for sale of his 1/3rd share in CTS No. 189 within Pratapganj Peth in the district of Satara for Rs. 2,21,000/- and the said sale was required to be executed in the name of mother and wife of the appellant. At the time of agreement, Rs. 50,000/- was paid by the accused to the complainant. Thereafter on 10.11.1995 sale deed was scribed and on that date a further sum of Rs. 1,25,000/- was paid by the accused to the complainant besides a post-dated cheque drawn on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The question posed is no longer res integra as the same is concluded by a two Judge Bench decision of this Court in the case of Anil Kumar Sawhney vs. Gulshan Rai, 1993 (4) SCC 424 wherein in similar circumstances it was laid down by this Court that post-dated cheque shall be deemed to have been drawn on the date it bears and not the previous date on which it was made over by the drawer to the drawee, but as the matter has been placed before this three Judge Bench, we find it expedient to consider the same. In the original Act, Chapter XVII contained two sections: Section 138 was related to power to appoint Notary Public and Section 139 dealt with power to make rules for Notary Public. But with the introduction of the Notaries Act, 1952 making elaborate provision for appointment of Notaries and their duties, functions, etc., the aforesaid provision became redundant and consequently by Section 16 of the Notaries Act, 1952, Sections 138 and 139 were repealed and thereby Chapter XVII was abolished w.e.f. 14th February, 1956. However, Chapter XVII has been re-introduced in the Act by Section 4 of the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. Explanation.- For the purposes of this section, `debt or other liability means a legally enforceable debt or other liability. -(emphasis added) S.139.- Presumption in favour of holder.- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. S.140.- Defence which may not be allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties, and it is for a Judge at the trial to construe that contract by reading what is written upon it. Reading this cheque, upon its face it is dated the 10th August, and is payable to order. What is the true construction of that contract upon reading it? It is simply an order to pay 250l. upon demand. It is said that this is not the proper construction under the circumstances, because the cheque was signed on the 3rd August, and handed over to the payee upon the 8th August, being dated the 10th August. It is said that the cheque was, therefore, a post-dated cheque. Upon those facts being proved before the Judge, what ought he to do? Must he say that, in construing this written document, because it was handed over before the day of the date written upon it, he must put a different construction upon it and say that it is not a bill payable upon demand, but a bill payable two days after the day of its issue or negotiation? I have never heard of a cheque being so construed, and the argument of the appellant is entirely fallacious..It is not denied that, by the Bills of Exchange Act, 1882, a post dated cheque is not made invalid;..The objection as to post-dating a cheque is therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Reports 123, the matter was considered by the High Court of Australia and it was laid down that a post-dated cheque was a bill of exchange payable at a future date. In Halsburys Laws of England, 4th Edition (Reissue) Volume 3(1), at page 143, procedure to be adopted by the bank in relation to post-dated cheque has been enumerated which reads thus:- Post-dated cheques are not invalid, but the banker should not pay such a cheque if presented before the date it bears. If, therefore, a cheque dated on a Sunday is presented on the previous business day, it should be returned with the answer `post- dated. A post-dated cheque, however, if presented at or after its ostensible date, should be paid though the banker knows it to be post-dated, and even if it has been presented before the date and refused payment. In Chalmers Guest on Bills of Exchange, Cheques and Promissory Notes, 15th Edition, at page 74, the concept of `post- dated cheques has been explained as under:- Post-dated cheques. Cheques are often issued post-dated, that is to say, bearing a date later than that on which they are in fact issued. The purpose of issuing a post- dated cheque is to prevent th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onditional, the mere delivery of the cheque on a particular date does not mean that the payment was made on that date unless the cheque was accepted as unconditional payment. Where the cheque is not accepted as an unconditional payment, it can only be treated as a conditional payment. In such a case the payment for purposes of S. 20 would be the date on which the cheque would be actually payable at the earliest, assuming that it will be honoured..As the payment was conditional it would only be good when the cheque is presented on the date it bears, namely, February 25, 1954 and is honoured. The earliest date, therefore, on which the respondent could have realised the cheque which he had received as conditional payment on February 4, 1954 was the 25th February, 1954 if he had presented it on that date and it had been honoured. From a bare perusal of Sections 5 6 of the Act it would appear that 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. On the other hand, a `cheque is a bill of exchange drawn on a bank by the holder of an account payable on demand. Under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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