TaxTMI 
TaxTMI 
1993 (10) TMI 347
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.... appeals by way of special leave petitions are by Anil Kumar Sawhney against the order of the High Court. 3. The appellant and the respondent were the share-holders of M/s. Sai Beverages Private Limited, a private limited company having its registered office at Karnal. The company had two groups of share-holders, one led by the appellant and the other by the respondent. Disputes between the two groups of share-holders led to the filing of a civil suit at Karnal, Ultimately the parties arrived at a settlement which was recorded in a deed of compromise dated March 5, 1990. The appellant agreed to transfer all the shares standing in the names of his group- associates to the respondent-Gulshan Rai for a total consideration of Rs. 10 lacs. The payment was to be made by way of eight post-dated cheques of different amounts. The suit was disposed of in terms of the settlement entered into between the parties. Some of the cheques were encashed on presentation to the bankers. Two cheques dated February 15, 1991 for Rs. l lac each, one cheque dated April 15, 1991 for Rs. 1,50,000 and another cheque dated May 15, 1991 for Rs. 1,50,000 were returned by the banks with the endorsement "not arran....
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....he cheque, or with both: Provided that nothing contained in this section shall apply unless - (a) the cheque has been presented to the bank within a period of six 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, makes 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. Explanation - For the purpose of this section, "debt or liability" means a legally enforceable debt or other liability. 139. Presumption in favour of holder - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, or any debt or other liability. 140. Defence which ma....
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....9; would make this intention explicit. Post-dated cheques, though legal, are real anomalies in the commercial world. They are payable on demand and negotiable even between the dates of issue and the dates shown on them. The holder of such a cheque, duly negotiated to him, even before the date the cheque bears, is indeed a holder in due course under the Act. Yet, when presented to the bank before the ostensible date, the banker does not honour the cheque but returns them. The unpaid banker who honour the cheque, without noticing the date the cheque bears, does so, at his risk, since he is bound to suffer loss, if the drawer of the cheque countermands the cheque before the date of cheque, by a stop payment order or he dies or becomes insolvent before the above date. The position of a holder in due course of such a cheque is just the same. Yet the law is that a cheque otherwise valid does not become invalid merely by reason of its being either post-dated or antedated. When, therefore, a person receives a cheque, post-dated or ante-dated beyond the period of six months, he should be deemed to receive it with the knowledge that, in the event of dishonour for want of funds, Section 138 o....
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....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 of Section 138 of the Act cannot be dealt with independently of the right to present the same. In relation to the drawer and drawee post-dated cheque becomes operative only from the date of 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. 10. The Punjab and Haryana High Court in the impugned judgment followed the Madras High Court view and did not agree with the Division Bench of the Kerala High Court. 11. We do not agree with the reasoning and the conclusions reached by the Madras High court which have been followed by the learned single Judge....