M. P. CHINNAPPA, J.

( 1 ) AN important question is raised in this petition viz. , that the complaint is not maintainable on the ground that the cheque was issued on 15-10-92 with the date on the cheque as 22-3-93. The said cheque was presented on 24-4-93. The date has to be computed from the date of issuance of cheque and not the date mentioned in the cheque itself. On that ground, the counsel contended that the cheque was presented beyond 6 months from the date of issuance. Hence, the complaint is liable to be dismissed.

( 2 ) REPELLING this argument, the learned counsel for the respondent however submitted that the cheque in question was post-dated and the same was presentable before the bank for encashment only on 22-3-1993 or on subsequent date. Therefore, the cheque presented was within time.

( 3 ) IT is an admitted fact that the respondent has lodged a complaint under Section 200, cr. P. c. before the vii additional c. m. m. , Bangalore, which was registered as c. c. No. 17061 of 1993. In the complaint it is alleged that the petitioner had borrowed a sum of Rs. 45,000/- to run a hotel business. To discharge the said liability the petitioner had issued a post-dated cheque for a sum of Rs. 45,000/- on the same day. The cheque bearing No. 0439898 dated 22-3-1993 drawn on canara bank, mahalaxmipuram layout, Bangalore. The said cheque was presented on 24-4-1993 through his bank viz. , apex bank, Bangalore. The said cheque was however dishonoured as there were no funds. After issuing statutory notice, the complaint came to be filed. The learned magistrate has taken cognizance of the offence and directed to issue process to the petitioner. The said order is questioned in this petition.

( 4 ) IN view of this argument, the question that arises for consideration is:what is the date from which the period of 6 months has to be computed for the purpose of determining the period under Section 138 (a) of the Negotiable Instruments Act?

( 5 ) PROVISO (a) to Section 138 of the negotiable instruments act reads:"provided that nothing contained 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;" similar arguments were advanced before the Madras high court and that high court has held in Babu Xavier v Lalchand Munoth, the use of the words in proviso (a ). . . Within a period of six months from the date on which it is drawn "rather than within a period of six months from the date the cheque bears" and the use of the words "or within the period of its validity whichever is earlier" rather than the words "or within the period of its validity, whichever is later" will make this intention explicit. On that ground, the court has held that the limitation for filing a complaint in respect of post-dated cheques is the date on which it is drawn and signed by the drawer in its completed form and not on the date the cheque bears. This judgment has been overruled by the apex court in a judgment in Anil Kumar Sawhney v Gulshan Rai, wherein their lordships have held that the period of 6 months shall be calculated from the date which the cheque bears. It is only when the post-dated cheque becomes a "cheque", w. e. f. the date shown on the face of the said cheque, the Provisions of Section 138 come into play. The net result is that a post-dated cheque 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.

( 6 ) IN the case on hand, it is clear that the cheque was issued on 15-10-92 with a post date as 22-3-93 and the same was presented on 24-4-93. So if the date is reckoned from 15-10-92 the presentation of the cheque was beyond 6 months as on 24-4-93 but if the date is taken as 22-3-93 as the date of issue of cheque, then the cheque was issued

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