The main legal point established in the judgment is that the offense under Section 138 of the Negotiable Instruments Act is committed when a person draws a cheque on an account with insufficient funds, and even if the account is closed before the cheque becomes payable, the offense is still deemed to have been committed.

The revision-petitioner was the accused in C.C. No. 64 of 1991 on the file of the Judicial First Class Magistrate's Court, Attingal who was convicted and sentenced to undergo simple imprisonment for three months under Section 138 of the Negotiable Instruments act, 1881 (for short "the Act") and to pay compensation of Rs. 13,600/- to the complainant under Section 357(3), Cr.P.C. and in default to undergo simple imprisonment for three months more. He was ordered to pay Rs. 1,500/- towards costs and in default to undergo simple imprisonment for thirty days. The appeal preferred by him before the Court of Session, Trivandrum was dismissed as per judgment in Crl. Appeal No. 225 of 1992. Hence, this revision.

2. The complaint in which the revision-petitioner was convicted was filed by the first respondent alleging offence punishable under Section 138 of the Act. It is the case of the complainant that the accused borrowed from her an amount of Rs. 10,000/- on 5-9-1990 undertaking to repay the same within four months and issued Ext. P1 cheque bearing the date 5-1-1991 drawn on the Chirayankil branch of the Federal Bank. The complainant presented the cheque for collection, but the same was dishonoured by the bank on 22-1-1991 on the ground that the account was closed. Notice followed, but the same could not be delivered. Thereafter a telegram demanding payment was sent which was received by the accused. Still, the amount remains unpaid.

3. Though several points have been raised in the revision, counsel for the petitioner pressed only one point. According to him, going by the averment in the complaint and the evidence adduced, no offence under Section 138 of the Act is committed by the petitioner.

4. It is conceded by either side that the account maintained by the petitioner/accused in the bank was closed on 17-12-1990. It is in evidence that the cheque bears the date 5-1-1991. It is the case of the complainant that the cheque was drawn on 5-9-1990. There is no evidence to show otherwise. The accused was not examined. So, counsel for the revision-petitioner argued that the cheque must be deemed to have drawn on 5-1-1991, the date shown on the face of the cheque which is after the closure of the bank account maintained by the closure by the accused and hence no offence under Section 138 of the Act is attracted.

5. It is very difficult to accept this submission. Offence under Section 138 of the Act is committed when a cheque drawn by a person on an account maintained by him with there banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank. So, two questions are to be examined in this case : (a) whether the cheque was drawn by the accused on the account maintained by him with the bank, and (b) whether offence was committed when the cheque was dishonoured on the ground that the account was closed.

6. As already stated, there is evidence on the side of the complainant to show that the cheque was drawn on 5-9-1990 on which day the drawer was maintaining an account with the banker which was closed only on 17-12-1990. So, it is clear that the cheque was drawn on the account maintained by the accused with the banker. But the argument of counsel for the petitioner is that the date of drawing of the cheque must be deemed to be on 5-1-1991, the date which is seen on the face of the document. He relied on the decision reported in Anil Kumar Sawhney v. Gulshan Rai, 1994 (1) KLT 111, and argued that the date seen on the face of the cheque should be treated as the date of drawal of the cheque. In the decision referred to above the Supreme Court was considering whether six months' period for presenta