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Andhra Pradesh High Court
M.Venkateswara Rao - Appellant
Versus
Medarametla Venkateswarlu - RESPONDENT
Decided On: 10-13-92
Cheque issued by one of the directors of a company dishonoured for want of sufficient funds - Complaint can be filed against the director who issued the cheque without Impleading the company as a party.
HELD: The validity of the cheque in the case of an ante-dated cheque runs from the date which bears on the cheque and in the case of a post dated cheque also, the validity of be cheque runs from the date contained on the (instrument for a period of six months. Section 138 of the Act contemplates the period of six months or the period of its validity, whichever is earlier. The first part of the section covers the cases where the cheques are ante-dated. There, fore, the reasonable construction that has to be placed to compute the period of an instrument is from the date contained on the instrument but not from the date on which it has been signed or prepared by the party concerned. By virtue of ante-dating and post-dating the cheques, the parties the document duly taking into account the validity of the instrument. The exact meaning of the word "Drawn" has to be given effect to with reference to the date which the instrument or the cheque bears. If that is not so there would be no necessity for the parties to ante-date or post- date the cheques and all the cheques would be deemed to have been drawn when they are signed or prepared. After all, the provision of cheque facility is only to help the people in their business transactions according to the exigencies of the situation and to say that the cheque is drawn on the date of its preparation, it runs counter to the facility which the cheque is intended to serve. Therefore, the date of validity of presentation of the cheque either in the case of ante-dated or post-dated cheques with reference to the date that is contained on the instrument only. In the instant case, since the cheques bear the date 27-12-1990 and they were presented on 13-6-1991, it has to be held that the cheques have been presented well within the validity period i.e., within six months from 27-12-1990.
( 1 ) SINCE common questions arise in Crl. P. Nos. 403 and 404 of 1992, both were heard together and are being disposed of by a common judgment.
( 2 ) CRL. P. No. 403 of 1992 arises out of C. C. No. 104 of 1991 and Crl. P. No. 404 of 1992 arises out of C. C. No. 105 of 1991 on the file of the learned II Additional munsif Magistrate, Ongole. Both the Criminal Petitions were filed under section 482 Cr. P. C. to quash the proceedings in C. C. Nos. 104 and 105 of 1991 respectively which were initiated under Section 200 Cr. P. C. and Section 138 of the Negotiable Instruments Act, 1988 (hereinafter referred to as "the Act" ).
( 3 ) THE facts leading to the filing of the two Criminal Petitions are, briefly, as follows: the petitioner in both the Criminal Petitions is the same. The petitioner borrowed a sum of Rs. 1,00,000/- from the first respondent in Crl. P. No. 403 of 1992 on 27-11-1990. On the same date, the petitioner executed a letter, a promissory note and also issued a post-dated cheque dt. 27-12-1990 for rs. 1,00,000/ -. The first respondent in Crl. P. No. 403 of 1992 presented the said cheque in Vijaya Bank at Ongole on 13-6-1991 and it was returned with an endorsement that there are insufficient funds in the account of the petitioner. Subsequently, on 17-6-1991, the first respondent in Crl. P. No. 403 of 1992 issued a notice to the petitioner bringing to his notice about the dishonour of the cheque and requesting him to arrange for the payment with interest within 15 days from the date of receipt of the notice. The said notice was received by the petitioner on 26-6-1991, to which he gave a reply dated 1-7-1991 which was received by the first respondent in Crl. P. No. 403 of 1992 on 5-7-1991. Not satisfied with the reply of the petitioner, the first respondent in Crl. P. No. 403 of 1992 filed a criminal complaint on 30-7-1991 before the learned II Additional munsif Magistrate, Ongole under section 200 Cr. P. C. r/w Section 138 of the Act. The learned Magistrate having found-that all the requirements necessary for taking cognizance of the case have been fulfilled, took the case on file and registered the same as C. C. No. 104 of 1991.
( 4 ) LIKEWISE, the petitioner also borrowed a sum of Rs. 72,000/- from the first respondent in Crl. P. No. 404 of 1992 on 27-11-1990. On the same day, the petitioner issued a post dated cheque dated 27-12-1990 for Rs. 72,000/ -. The first respondent in Crl. P. No. 404 of 1992 presented the said cheque in Vijaya Bank, ongole on 13-6-1991 and it was also returned with the endorsement that there are insufficient funds in the account of the petitioner. The first respondent in crl. P. No. 404 of 1992 issued a notice dated 17-6-1991 to the petitioner bringing to his notice about the dishonour of the cheque and requesting him to arrange for the payment with interest within 15 days from the date of receipt of the notice. The petitioner gave a reply dated 1-7-1991 which was received by the firstrespondent in Crl. P. No. 404 of 1992 on5-7-1991. Not satisfied with the reply of the petitioner, the first respondent in Crl. P. No. 404 of 1992 filed a criminal complaint on 30-6-1991 before the learned II Additional Munsif Magistrate, ongole under Section 200 Cr. P. C. r/w Section 138 of the Act. The learned magistrate having found that all the requirements necessary for taking cognizance of the case have been fulfilled, took the case on file and registered the same as CC. No. 105 of 1991.
( 5 ) HEARD the elaborate arguments of the learned counsel for the petitioner and the learned counsel for the first respondent in both the Criminal Petitions.
( 6 ) THE first point urged by Sri V. V. S. Rao, the learned counsel for the petitioner, is that since the cheques in question have been issued by the petitioner on 27-11-1990 though the same were dated 27-12-1990, it must be deemed that the cheques have been drawn on 27-11-1990 itself. If that contention is accepted, the learned counsel argued,
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