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TMI Blog2007 (10) TMI 716X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1881 (for short the Act). 2. The said complaint was filed on account of dishonour of Cheque No. 167547 dated 25.4.2005 and in the sum of Rs. 48,01,029/- drawn over the Punjab National Bank. The statutory demand notice was issued on 23.11.2005 and it was received by the accused on 25.11.2005 and as the accused failed to pay the amount of the dishonoured cheque within 15 days, the complaint came to be filed. The complainant had filed affidavit for examination-in-chief at Exh. 18 and he was subjected to cross-examination by the learned Advocate of the accused. The dishonoured cheque was at Exh. 22 and the memos of the respective banks was at Exhs. 25 and 44, whereas the statutory notice was at Exh. 26 and the acknowledgement receipts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque and held that the cheque dated 25.4.2005 should have been presented to the drawer bank on or before 25.10.2005. It clearly mean that it was presented beyond the period of its validity and the complainant failed to produce any evidence showing that the cheque was presented in the drawee bank within the validity period of six months. The complaint came to be dismissed mainly on this ground. 3. Mr. Kumbhakoni the learned Counsel for the applicant original complainant urged before me that the period of validity of six months in respect of a cheque must be counted from the next day i.e. if the cheque was dated 25.4.2005, the period of six months ought to be counted from 26.4.2005 and if so counted, the receipt of the cheque by the dra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Mr. Thorat, the learned Senior Counsel, on the other hand, has supported the view taken by the Trial Court. He has placed reliance on the following decisions:- (a) Jiwanlal Achariya v. Rameshwarlal Agarwalla 1966 DGLS 161 AIR 1967 SC 1118; (b) Anil Kumar Sawhney v. Gulshan Rai 1993 DGLS 857 : JT 1993 (6) SC 280 : 1993 (4) SCALE 114 : 1993 (4) SCC 424; (c) Ashok Yeshwant Badave v. Surendra Madhavrao Nighojakar 2001 (5) Bom CR (SC) 456 : AIR 2001 SC 1315 : JT 2001 (3) SC 508 : 2001(2) SCALE 472 : 2001 (3) SCC 726 : 2001 (42) ACC 788. Mr. Thorat also relied upon a decision of the Kerala High Court in the case of Muhammed Kunhi v. Janardhanan, DCR 320. In the case of Someshwar Bapurao Nilakhe v. Nivritti Baburao Gholave AIR 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 post-dated cheque remains negotiable but it will not become a cheque till the date when it becomes payable on demand . 5. As held by the Apex Court in the case of Anil Kumar Sawhney (supra) and Shri Ishar Alloy Steels Ltd. (supra), 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, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is inscribed on it. In the instant case, if the cheque was dated 25.4.2005, undoubtedly the payee could have encashed the same on the very same day. if it was presented during the banking hours and, therefore, there is no justification in claiming that the first of the dates or the date written on the cheque was required to be excluded for counting the period of six months. In defence of this, Mr. Kumbhakoni submitted that the cheque could be issued in the night or after the banking hours and, therefore, it could be impossible to encash it on the date which is inscribed on it. Undoubtedly such a case or defence was not made out before the Trial Court by the complainant and, therefore, this hypothetical submission cannot support the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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