Manoharan, J.:— Petitioner seeks to quash the proceedings C.C No: 479 of 1990 pending before the Chief Judicial Magistrate's Court, Ernakulam by invoking Section 482 of the Cr. P.C Respondent filed a complaint against petitioner alleging that a cheque issued by the petitioner on 6-3-1990 for an amount of Rs. 15,192.65 drawn on the Syndicate Bank, Ernakulam was presented for encashment on 2-8-1990 was dishonoured on 3-8-1990, and that though notice as required under Clause (b) of proviso to Section 138 of the Negotiable Instruments Act, 1881, for short (‘the Act’) was issued, the petitioner failed to make the payment within 15 days of the receipt of the notice, and therefore the petitioner has committed offence under Section 138 of the Act.

2. According to the petitioner, the cheque post dated 6-3-1990 was drawn on 1-3-1986; and since the cheque was not presented within six months from the said date as required under Clause (a) of proviso to Section 138 of the Act no offence under the said section is disclosed and therefore it is necessary that the proceedings is quashed. The learned single Judge before whom the matter came up for consideration felt that the matter has to be considered by a Division Bench since the view taken in Paramjith Singh v. Job (1989 (2) KLT 740) was not endorsed by another single Judge and the same was referred to a Division Bench for consideration.

3. Backing, Public -Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 (Act 66 of 1988) amended the Act also and inserted Chapter XVII containing. Section 138 to 142 in the Act. Section 136 makes the drawer of a cheque liable for penalties in case the cheque is dishonoured and payment is not made after notice. As has noted, whereas the respondent alleged that the petitioner has committed offence punishable under Section 138 of the Act, the petitioner maintains that though the cheque was dishonoured, since the conditions required under Section 138 of the Act are not satisfied, no offence under the said Section is made out. For properly appreciating the argument, it would be necessary to read Section 138 of the Act. Section 138 reads:

“138. Dishonour of the cheque for insufficiency, etc., of funds in the account.— Where any cheque drawn by a person on an account maintained by him with a 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 of 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both:

4. Provided that nothing contained in this Section shall apply unless—

(a) the cheque has been presented to the bank within a period of fix months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, make a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days, of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be to-the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

5. Explanation.—For the purpose of this section, “debt or other liabiliiy”-means a legally enforceable debt or other liability”.

6. According to the petitioner the cheque dated 6-3-1990 is a post dated cheque and the same was drawn and delivered on 1-3-1986. As admittedly the cheque was not presented within six months from 1-3-1986, the condition under clause (a) of the proviso to Section 138 of the Act having been not satisfied no offence under the said Section is committed. According to him though the cheque bears the dated 6-3-1990, since the same was drawn and delivered on 1-3-1986 the cheque ought to have been presented within six months from the said date to satisfy the condition in clause (a) of the proviso to Section 138; that having been not done; offence under the said Section cannot be said to have been committed. But according to the respondent apart from the fact that the question whether the cheque is a post-dated cheque is a matter to be proved; even assuming that the cheque was delivered on 1-3-1986, the cheque can be considered to have been drawn only on the date it bears, that is 6-3-1990. According to him since the cheque was presented within six months from that date the condition in Clause (a) of the proviso is also satisfied. The two questions that would arise are whether the cheque in question is a post-dated cheque delivered on 1-3-1986; and the other, which is the date on which a post-date cheque can be considered to have been drawn for the purpose of Sec. 138 of the Act.

7. The first is a question of fact. Reliance was pieced by the petitioner on Annexures II and V in support of his argument that the cheque was drawn on 1-3-1986. Annexures II and V are copies of the notices by the respondent. Annexure V dated 2-4-1986 states that the cheque issued was post-dated 6-3-1990. From that it may be possible to infer the cheque mentioned therein was delivered, before 2-4-1986 and that the date of the same was 6-3-1990. But the cheque number mentioned in Annexure II is not the same as in Annexure V. Thus it becomes a matter for evidence. In such circumstance normally it will not be appropriate to invoke the jurisdiction under Section 482 Cr. P.C

8. We now proceed to examine the other question. The contention of the petitioner, as noted early, is that the cheque though bears the date 6-3-1990 really was drawn on 1-3-1986 and inasmuch as the cheque was presented for encashment only on 2-8-1990, no offence under Section 138 of the Act is not made out. The cheque was presented within six months after the date of the cheque but beyond six months of its delivery on 1-3-1986. According to the learned counsel for the petitioner, with respect to post-dated cheque as the present one, if the cheque bears a date beyond six months from the date on which it was drawn the same would be outside the pruview of Section 138 of the Act. Learned counsel relied on the decision of a single Judge of Madras High Court in Babu Xavier v. Lalchand Lunoth (1990 TLNJ (Crl) 121). This question as such did not arise for consideration in Paramjith Singh's case (1989 (2) KLT 740) or in Prithviraj v. Mathew Koshy (1991 (1) KLT 595) (DB) which confirmed former. What was considered in Paramjith Singh's case (1989 (2) KLT 740) and in Prithviraj's case (1991 (1) KLT 595 (DB) was whether prosecution is maintainable under Section 138 of the Act in the case of a cheque issued before the commencement of the amending Act 56 of 1988 but dishonoured after the said commencement. The contention was since the amending Act came into force only on 1-4-1989 and the cheque therein was drawn before such commencement, prosecution under Section 138 of the Act is not maintainable in view of Article 20(1) of the Constitution. It was held, as per Section 138 of the Act offence is committed, not on the drawing of the cheque but is on faliure to pay the amount within 15 days of the receipt of the notice of dishonour. Though the cheque was drawn prior to the commencement of Act 66 of 1988, as the offence was committed after the commencement it cannot, be said that the law was not in force at the time of commission of offence under Section 138 of the Act. The consequence of dishonour of post-dated cheque in the context of Section 138 of the Act did not arise for consideration in those decisions.

9. As noted, the question for consideration in this case is when can a post-dated cheque be considered to have been drawn for the purpose of Clause (a) of the proviso to Section 138 of the Ace. The Act as such does not contain any specific provision as to when a cheque could be considered to be drawn. As per the presumption under Section 118 (b) of the Act the cheque must be presumed to have been drawn on the date it bears. The contention now is, even if the cheque was presented and was dishonoured within six months of the date of the cheque, since the cheque is a post-dated one it must be considered to have been drawn on the date when it was delivered viz; on 1-3-1986 and since the cheque was not presented within six months from the date the condition in clause (a) of the proviso to Section 138 of the Act is not satisfied.

10. In considering the said aspect, it will be necessary to know the character of a past dated cheque. Post-dated cheque is one containing a later date than that of the delivery. Therefore, it has an implied notice that there is no present deposit to the credit of the drawer and an implied guarantee that the funds would exist when it become due. Though the cheque is payable only on a future date it may be negotiable. There ss no prohibition in the Act against post-dating a cheque. If a banker pays the amount before the due date of a cheque, he will lose the statutory projection arising from such payment. In the decision in Jiwanlal Achariya v. Rameshwarlal Agarwalla. (AIR 1967 SC 1118) in considering the question as to when would a payment be deemed to have been made as per a post-dated cheque for the purpose of Section 20 of the Limitation Act, it is held that the material date is the date on which the payment could have been made. In that case post-dated cheque was given on 4-2-1954, it was dated February 25, 1954. The Supreme Court held in para 8 at page 1122:

“We are, therefore, of opinion that as a post-dated cheque was given on February 4, 1954 and it was dated February 25, 1954 and as this was not a case of unconditional acceptance, the payment for the purpose of S. 20 of the Limitation Act could only be on February 25, 1954 when the cheque could have been presented at the earliest for payment”.

11. In the case of a post-dated cheque payment need be on the date it bears. Thus a post-dated cheque is intended to be operative only from the date it bears though in between the date of delivery and the date it bear, the same is negotiable. But the drawee is not bound to honour it on any date prior to the date it bears.

12. Interpretation of Section 138 of the Act to discover the liability arising from dishonouring of a post-dated cheque has to be with due regard to the said character of post-dated cheque and the scope of clause (a) of the Proviso to Section 138 cannot be considered in isolation. The statute has to be construed with reference to the context and other clause of Act to make it consistent with them. The very object of the provision is to enhance the acceptability of cheque by making the drawer liable for penalty in case the cheque bounces for the reason mentioned in the said Section. If a post-dated cheque is considered to be drawn on date of its delivery, the drawer of such a cheque can defeat Section 138 of the Act by showing a date beyond six months of its delivery. In the circumstance an interpretation which will bring about such a result cannot be adopted. The object of the section is to make drawer of the cheque subject to penalty when the cheque bounces on the ground mentioned in the Section. The rigor of the Section itself reveals the intention of the legislature. Enough safeguards are provided in the Section itself to protect honest drawers.

13. Offences under Section 138 of the act would be committed only when a cheque drawer for payment of any debt or liability is returned by the bank unpaid and drawer fails to make payment of the said amount within 15 days of notice of dishonour. One of the element to be satisfied is the cheque should have been returned unpaid. It goes without saying such return of the cheque by the drawee could only be on presentation; that is when he is capable of presenting the same for encashment. In the case of a post-dated cheque as noted early, the same can be presented only on or after the date of the cheque. The question as to when a post-dated cheque can be considered to have been drawn for the purpose Section 138 of the Act cannot be dealt with independently of the right to present the same. In relation to the drawer and drawee postdated cheque becomes operative only from the date of the cheque when alone the same is intended to be honoured. Post dated cheque for the purpose of Clause (a) of the proviso to Section 138 of the Act has to be considered to have been drawn on the date it bears and in this case, since the cheque was presented within six months of the date of the cheque, it cannot be said that the condition in the said proviso is not satisfied. In view of the above, with respect, we are unable to agree with the view taken in Babu Xavier's case (1990 TLNJ (Crl) 121) referred to early.

14. The Criminal M.C is without merit and the same is liable to be dismissed which accordingly is hereby dismissed.