The main legal point established in the judgment is the interpretation of the provisions of section 138 of the Negotiable Instruments Act, 1881, emphasizing the transformation of a post-dated cheque into a cheque on the date mentioned on the document, and the importance of maintaining the credibility and acceptability of negotiable instruments in business transactions.

JUDGMENT - KHANDEPARKAR R.M.S., J.:---Heard. Perused the records.

2. The petitioner seeks to challenge the proceedings initiated against him under the provisions of section 138 of the Negotiable Instruments Act, 1881 (hereinafter called as the said Act) as well as the provisions of section 138 of the said Act.

3. The petitioner is a businessman running a Dal Mill under the name and style of Goenka Industry at Akola. In the course of business certain transactions took place between the petitioner and the respondent No. 2. A complaint came to be filed by respondent No. 2 under section 138 of the said Act in the Court of Judicial Magistrate, First Class, Akola. According to the respondent No. 2 a sum of Rs. 3,00,000/- was found to be outstanding against the petitioner on 23-1-1999 and in respect thereof a post-dated cheque was issued on Akola Janata Commercial Co-operative Bank Ltd. The cheque was dated 28-12-1999. It was presented to the bank for encashment on 24-6-2000 but it was dishonoured and, therefore, a notice of 15 days was served upon the petitioner on 4-7-2000 and since the petitioner failed to pay the money within the stipulated time, a complaint came to be filed on 14-8-2000. Consequent thereto, the present petition has been filed challenging the said proceedings as well as the provisions of law contained in section 138 of the said Act on various grounds.

4. The first ground of challenge is that the law being well-settled by the Apex Court, that a post-dated cheque does not amount to a cheque within the meaning of the said expression under the said Act, but it would be a bill of exchange and if such a bill of exchange is dishonoured no offence can be said to have been committed under section 138 of the said Act. It is further submitted that the condition precedent for the prosecution under section 138 is that the dishonoured document must be a cheque and not a bill of exchange at the time of issuance or execution of such document. In support of the contentions, reliance is sought to be placed in the decision of the Apex Court in the matter of (Anil Kumar Sawhney v. Gulshah Rai)1, reported in 1993(4) S.C.C. 424, (Ashok Yeshwant Badeve v. Surendra Madhavrao Nighojkar another)2, reported in 2001(5) Bom.C.R. (S.C.)456 and (Goaplast Private Ltd. v. Shri Chico Ursula D'Souza another)3, reported in 2003 Bom.C.R.(Cri.) (S.C.)931.

5. The contention that since the Apex Court has ruled that a postdated cheque is a bill of exchange, and therefore no prosecution under section 138 of the said Act can lie is totally devoid of substance. The Apex Court has in fact held that a postdated cheque continues to be a bill of exchange till the date of the day bearing on the said document and from that day it transforms into a cheque. The ruling of the Apex Court in that regard in Anil Kumar Sawhney's case is that:

"A "post-dated cheque" is only a bill of exchange when it is written or drawn, it becomes a cheque when it is payable on 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"."

Apparently, therefore, a document which is executed as a post-dated cheque will not be an enforceable cheque till the day which is disclosed as the date of the document. Being so, the petitioner would be right in contending that no proceeding under section 138 in relation to such document can be initiated before the date disclosed on such document. In other words, in order to enable the holder of such document to hold the drawer thereof to be responsible and liable for prosecution under section 138, the holder will have to wait till the expiry of the date which is disclosed on the face of the document and the proceedings under section 13

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