Section 138 of the Negotiable Instruments Act, 1881 makes the dishonor of a cheque a punishable offence with the maximum punishment of two years, or fine, or with both.
Once a person has given a cheque to another person, the cheque on presenting to the bank should get cleared otherwise the provision of Section 138 NI Act are invoked.
Every cheque has a limitation period. Previously, it was 6 months from the date mentioned on the cheque and now it is 3 months. So supposedly, a cheque that is dated 01.01.2018 is presented after 1st April 2018, the cheque will not be cleared as the limitation period of the cheque has expired. Once, the limitation period of the cheque has expired, there is almost no remedy left for the holder of the cheque and he cannot even approach the court u/s 138. All he can do is, is file a Suit for recovery of money under Order 37 of the Civil Procedure Code or he can ask for a fresh cheque from the drawer of the cheque.
Now, a question arises in the mind, as to whether the date of cheque can be changed? If it is changed by the drawee or the holder of the cheque, its validity will not be restored and it will still be time barred, however, the Supreme Court has answered the question in the case of Veera Exports v. T. Kalavathy, [1] (2002) 1 SCC 97, whether the drawer of the cheque can change the date of the cheque.
Before, we see the abovementioned Supreme Court judgment, it will be pertinent to discuss the provision of the Negotiable Instruments Act, 1881 which deals with material alterations.
“87. Effect of material alteration. — Any material alteration of a negotiable instrument renders the same void as against anyone who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties;
Alteration by indorsee.—And any such alteration, if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration thereof.
The provisions of this section are subject to those of Sections 20, 49, 86 and 125.”
Thus, by a bare reading of Section 87, it is clear that if a person consents to a material alteration and was a party to it, he later on cannot take advantage of it by claiming that there was a material alteration.
In the abovementioned case of Veera Exports v. T. Kalavathy, the Supreme Court while observing that this is a question of fact whether alteration was made by the drawer himself or whether it was made with the consent of the drawer, the court held that:
“8. In our view this reasoning is entirely fallacious. There is no provision in the Negotiable Instruments Act or in any other law which stipulates that a drawer of a negotiable instrument cannot revalidate it. It is always open to a drawer to voluntarily revalidate a negotiable instrument, including a cheque.”
Therefore, the date of the cheque can be changed by the drawer of the cheque provided that it was voluntary as there is no such provision in the Negotiable Instruments Act which bars a drawer of a cheque to revalidate it. Furthermore, such revalidation of the cheque or change in the date will be subject to the facts of the case as to whether the provisions of Section 87 of Material Alteration would apply or not and therefore, if the date of the cheque is changed, and in the said extended period, the cheque bounces once again, there can be a case which can be filed under Section 138 NI Act.
