1989 (10) TMI 242

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....Negotiable Instruments Act, 1881 (for short, "the, Act"). The Magistrate who took cognizance of the offence issued summons to the petitioner. This criminal miscellaneous case is filed by the petitioner praying for quashing the complaint. 2. The two cheques in question were issued on December 31, 1988 (one for Rs. 7,272 and the other for Rs. 10,369). The cheques were presented for encashment, but the drawee-bank dishonoured them on April 30, 1989, with the endorsement "account closed". On May 6, 1989, the respondent issued a notice to the petitioner demanding payment of the amount covered by the dishonoured cheques. No amount was paid by the petitioner. Hence, the complaint was filed on May 29, 1989. These are the bare facts. 3. The co....

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....eguard that, if the facts constituting the offence had taken place before-introduction of Section 138 of the Act, the prosecution is bad and is liable to be quashed. Hence, the real question is whether the commission of offence under Section 138 of the Act is performed by drawing the cheques. Central Act 66 of 1988 by which Section 138 was inserted in the Act has been brought into force on April 1, 1989. It is contended that since the cheques were issued on December 31, 1988, the petitioner cannot be deemed to have committed the offence on any day subsequent to the introduction of Section 138 in the Act. The main body of Section 138 reads thus : "Where any cheque drawn by a person on an account maintained by him with a banker for payment....

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....d have failed to make payment of the amount within fifteen days of receipt of the notice. 7. When the main body of the section is read along with the proviso, it is clear that the offence will be deemed to have been committed only if the drawer of the cheque failed to make the payment within fifteen days of receipt of the notice. An "offence" as defined in Section 2 of the Code includes not only the doing of a positive act but also by omitting to do something as well. Here the relevant provision says that the offence is the omission to make payment within fifteen days of the receipt of the notice. Drawing the cheque is not the act by which the offence is deemed to have been committed. When the drawer fails to make the payment within the ....