Holder in due course may maintain Section 138 complaint; limitation for post-dated cheques runs from the date on the cheque.

Section 138 of the Negotiable Instruments Act is not confined to complaints by the named payee; a holder in due course may maintain the complaint where the cheque is received in the ordinary course and the statutory ingredients of dishonour and notice are satisfied. For post-dated cheques, the six-month period under the proviso is reckoned from the date written on the cheque, because the instrument becomes a cheque only on that date. On the facts, the cheques were presented within time, and the challenge based on maintainability and limitation failed.

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Issues: (i) whether a complaint under Section 138 of the Negotiable Instruments Act, 1881, is maintainable at the instance of a holder in due course and not only the named payee; (ii) whether, in the case of post-dated cheques, the period of six months under the proviso to Section 138 is to be reckoned from the date of delivery of the cheque or from the date written on the cheque.

Issue (i): whether a complaint under Section 138 of the Negotiable Instruments Act, 1881, is maintainable at the instance of a holder in due course and not only the named payee.

Analysis: The statutory language of Section 138 does not confine the right to prosecute only to the named payee. The proviso and Section 139 indicate that the remedy is available where the cheque is dishonoured and the statutory requirements are satisfied. The reasoning accepted that the holder in due course can maintain the complaint where the cheque is received in the ordinary course and the dishonour answers the ingredients of the offence.

Conclusion: The objection to maintainability failed, and the complaint was competent at the instance of the respondent.

Issue (ii): whether, in the case of post-dated cheques, the period of six months under the proviso to Section 138 is to be reckoned from the date of delivery of the cheque or from the date written on the cheque.

Analysis: A post-dated cheque is treated as a bill of exchange until the date written on its face, and it becomes a cheque only on that date. Therefore, for the purpose of clause (a) of the proviso to Section 138, limitation is computed from the date borne on the cheque and not from the date when it was delivered or issued. On the facts, the cheques were presented within the permissible period counted from the dates shown on them.

Conclusion: The contention that the prosecution was barred by limitation was rejected.

Final Conclusion: The petition to quash the complaint was found unsustainable because the complaint disclosed the ingredients of Section 138 and the presentation of the post-dated cheques was within time as computed from the dates appearing on the cheques.

Ratio Decidendi: For Section 138 of the Negotiable Instruments Act, 1881, a post-dated cheque is to be treated as drawn on the date written on its face, and a complaint may be maintained by the holder in due course if the statutory ingredients of dishonour and notice are satisfied.

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