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TMI Blog2006 (11) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, the revision petitioner/accused had to pay a sum of ₹ 1,14,471/- to the respondent, for a period from 09.05.1998 to 09.09.1998 and towards part payment, the revision petitioner issued a cheque bearing No.628595 dated 28.03.2000 drawn on Vijaya Bank, Vadapalani Branch, for a sum of ₹ 83,407/- in favour of the respondent/complainant and requested the complainant to present it for collection on 28.03.2000. Accordingly, when the cheque was presented by the respondent herein, through Bank of Rajasthan Limited, N.S.C Bose Road, Chennai, the same was returned by the Vijaya bank on 29.03.2000 with an endorsement, 'Funds insufficient' and therefore, the respondent issued a legal notice, the original of Ex.P.4. Though the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the appeal, aggrieved by which this criminal revision has been preferred. 7. It is not in dispute that the revision petitioner and the respondent herein were having business dealings. According to the learned counsel for the revision petitioner, the dishonoured cheque Ex.P.3 was issued only an undated cheque as security for the amount payable by the revision petitioner, as on 09.09.1998, and the amount was also paid, but the cheque was misused by the respondent/complainant. 8. In support of his contention, the learned counsel for the revision petitioner, drew the attention of this Court to the Bills, Ex.P.2 series, issued by the respondent/complainant, to the revision petitioner, wherein at page-22 of the typed set, Bill No.782 dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revision petitioner, Ex.P.3 cheque was not a post dated cheque. On the other hand, it was an undated cheque handed over on 09.09.1998 itself. It is seen that the date on the cheque was not filled up by pen, though the name of payee, amount in figures and words were written by pen. Strangely a rubber date stamp has been used to affix for the date 28.03.1999. Even in the judgments of the trial court, as well as the first appellate court, it has been held that the disputed document is an undated cheque and not a post dated cheque. Therefore, it has to be decided in the revision, as to whether a complaint dated 24.05.2004 under Section 138 of the Negotiable Instruments Act, based on an undated cheque that was handed over by the revision petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of whole or part of the debt and if a cheque is issued for a higher amount, then the amount due or payable, due to the dishonour, the cheque would not create any cause of action under Section 138 of the Negotiable Instruments Act. Here in this case, as found by the courts below, the amount due and payable would be less than the amount specified in the dishonoured cheque as contended by the learned counsel for the revision petitioner. 13. The learned counsel for the respondent has cited a decision of this Court reported in Y.Sreelatha @ Roja Vs. Mukanchand Bothra (2002-1-LW(Crl.)271), wherein this Court has held thus: As per Section 118, 138 and 139 of the Negotiable Instruments Act, the Court shall presume the liability of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failure to discharge the burden so shifted on the complainant, resulted the conviction of the accused, being set aside. 15. Here in this case, admittedly the undated cheque was signed and handed over on 09.09.1998, to the respondent/complainant. It is not in dispute that a cheque should be presented in the bank for collection, as per the Negotiable Instruments Act, within a period of six months from the date of issuance of the cheque. As contended by the learned counsel for the respondent, the date of the cheque has to be considered for computing the period of limitation. Here in this case, it is not a post dated cheque, but only an undated cheque and as per the evidence, it had been handed over on 09.09.1998 itself, but presented nearl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red view that filling up an undated cheque against the limitation prescribed under the Negotiable Instruments Act would be against the legislative mandate of the said Act and would create an anomalous situation likely to be misused by unscrupulous litigants. Therefore, I am of the view that the undated cheque issued and handed over on 09.09.1998 would not create the presumption that the revision petitioner had authorised the respondent to fill up the date as 28.03.2000, one and half years after the same was handed over to be presented for payment, and therefore, the alleged cause of action based on Ex.P.3 is not sustainable to maintain the criminal complaint against the revision petitioner. 18. Under Section 138 of the Negotiable Instrum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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