The validity of post-dated cheques under Sec. 138 of the N I Act is determined based on the date of drawing and the presentation period.

JUDGMENT

1. The respondent filed a private complaint under Sec. 200 of Cr.PC for the offence punishable under Sec. 138 of N I Act alleging that the cheques which were issued by the accused in favour of the complainant when presented for realization were dishonoured for want of funds. The learned Magistrate after recording the sworn statement took the cognizance of the aforesaid offence and issued summons. Taking exception to the same, the petitioner is before this Court.

2. The respondent " " complainant though served with notice remained absent.

3. The learned counsel appearing for the petitioner submits that the complaint was filed alleging that the cheques were issued by the accused for having supplied maze, which is evident from the invoice dtd. 15/1/2021 and by the time, the cheques were presented for realization, the validity of the said cheques had expired. He places reliance on the decision of the Hon'ble Madras High Court in the case of Babu Xavier " "vsLalchand Munoth (1990 (2) MWN (Cr.)).

4. I have examined the submission made by the learned counsel for the petitioner.

5. Ex.P6 is the copy of invoice which indicates that the complainant had supplied maze to the accused and in lieu of the same, the accused had issued four cheques in favour of the complainant towards the sale consideration. Admittedly, the cheques were handed over to the complainant on the date on which the invoice was executed by the accused in favour of the complainant. The invoice is dtd. 15/1/2021 and the cheques were presented on 7/5/2021. The validity of the cheque was for a period three months from the date it was drawn. The Hon'ble Madras High Court in the case of Babu Xavier (supra) at paras-7, 8, 9 and 14 read thus:

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The Act as such, does not contain any specific provision as to when a cheque could be considered as to when a cheque could be considered to be drawn. The validity and efficacy of an ante-dated or post dated cheque is not impaired merely on account of it being ante-dated or post dated. While in England Sec. 1392) of the English Bills of Exchange Act, 1982, statutorily recognizes the validity of such cheques "A bill is not invalidated by reason that it is ante-dated or post dated" we do not find any such parallel provision in the Negotiable Instruments Act, 1881, though substantially the two Acts correspond, being based upon the law developed by the English Courts, Indian Courts however have recognized the validity of such cheques.

8. Even in the Negotiable Instruments Act, legal sanction for the recognition of ante-dated a provision slightly analogus to the one and post dated cheques is found in Sec.118 of the Act . Sec.118(b) raised a presumption regarding the date on which a negotiable instrument could be taken to be drawn or made, Sec.118(b) is as follows:

"Until the contrary is proved, the following presumptions shall be made as to date (b) that every negotiable instrument bearing a date was made or drawn on such date."

This would show that a cheque is taken to be drawn not always on the date that the cheque bears. There is only an initial presumption that the cheque is drawn on the date it bears. However, it is open to parties to prove the contrary and in the event of any party succeeding in proving that a cheque was drawn earlier to the date it bears or later to the date it bears, the initial presumption regarding the date of drawing of the cheques, stands rebutted and the cheque would be said to be drawn, either on the earlier day or on the later day as the case may be.

9. Thomson's Dictionary of Banking, edited by F.R.Rider and D B Jenkins defines a post dated cheque as follows"

A cheque which is dated subsequent to the actual date on which it is drawn and which is issued before the date it bears, is called post-dated cheque."

An ante-date is defined as follows:

"Placing date on a document prior to that on which it is actually signed."

A cheque therefore could be said to be drawn on the day when it is signed