A post-dated cheque is a negotiable instrument within the meaning of the Negotiable Instruments Act.

JUDGMENT - SHARAD MANOHAR, J.:---The short question that arises in this revision application is whether a post dated cheque is a negotiable instrument within the meaning of the Bombay Money Lenders Act.

2. The relevant facts are as follows :---

On 19-5-1973, a sum of Rs. 1,500/- was purported to be advanced by the petitioner (hereinafter "the plaintiff") to respondent No. 1 acting on behalf of the respondents (hereinafter "the defendants"). Admittedly the amount was paid against three post dated cheques of Rs. 5000/- each but the total amount actually paid was not Rs. 1,500/- but Rs. 1,410/- only. A sum of Rs. 90/- was purported to be deducted as commission payable by the defendants to the plaintiffs. However, it is fairly conceded by Mr. Soni, the learned Advocate appearing before me for the petitioner that this was in fact a deduction of interest in advance. But his explanation is meaningless because if the interest was deducted even before the advance was made it only means that the sum advanced was the lesser amount. Mr. Soni conceded this position and the entire petition was argued on the basis that what was advanced by the plaintiff to the defendants against the three post-dated cheques was a sum of Rs. 1,410/- and not Rs. 1,500/-. The exact dates of the three post dated cheques could not be gathered from the record available before this Court. But there was no dispute before me nor even before the lower Court for the matter of that, that the cheques were payable before 12-7-1973.

The cheques were dishonoured when they were duly presented and hence the requisite notice dated 12-7-1973 was given by the plaintiff to the defendants for payment of the amount of Rs. 1500/- and upon their failure in that behalf, the suit was filed by the plaintiff in the year 1976 for the recovery of Rs. 1,500/- as principal sum and for the interest on the same.

3. The defence of the defendants was that out of the sum of Rs. 1500/- only a sum of Rs 750/- was received by them and further that even that amount was repaid by him. It was also contended by defendant No. 1 that he was a debtor within the meaning of Maharashtra Debt reliefs Act and that the debt was extinguished. There were other defences raised which need not be discussed here.

4. On these pleadings the issues were framed by the learned trial Judge. In addition to the issue relating to the position resulting from the Maharashtra Debt Reliefs Act, the learned Judge also framed issue as to whether the plaintiff was a money lender and as to whether he had complied with the provisions of the Bombay Money Lenders Act in order to entitle him to file a suit in connection with the transaction.

5. The plaintiff led evidence to prove that the amount of Rs. 1,500/- was advanced by him as against the three post dated cheques issued by defendant No. 1 on behalf of the defendants for the sum of Rs. 1500/-. In the cross-examination it was suggested that a sum of Rs. 90/- was deducted by him while giving advance of a sum of Rs. 1500/- and this fact was admitted by him. However, nothing in the cross-examination went to suggest that only a sum of Rs. 750/- was paid by him to the defendant or that the balance of amount of Rs. 750/- was repaid by them to the plaintiff.

6. As against the plaintiff's evidence the defendants did not even step into the witness box. It thus follows that so far as the factum of advance was concerned the plaintiff had sufficiently proved the advance of Rs. 1,410/- paid by him to the defendants.

Since the defendants did not step into the witness box there was no question of their having proved that they were debtors within the meaning of Maharashtra Debts Reliefs Act. The only question, therefore, that remained for decision of the trial Court was as to whether the plaintiff was a money lender within the meaning of the Bombay Money Lenders Act and whether the transaction in question was hit by any of the provisions of the said Act. In this connection the question to be decided by th

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