Advent of cheques in the market have given a new dimension to the commercial and corporate world, its time when people have preferred to carry and execute a small piece of paper called Cheque than carrying the currency worth the value of cheque. Dealings in cheques are vital and important not only for banking purposes but also for the commerce and industry and the economy of the country. But pursuant to the rise in dealings with cheques also rises the practice of giving cheques without any intention of honoring them. Before 1988 there being no effective legal provision to restrain people from issuing cheques without having sufficient funds in their account or any stringent provision to punish them in the vent of such cheque not being honoured by their bankers and returned unpaid. Of course on dishonour of cheques there is a civil liability accrued. However in reality the processes to seek civil justice becomes notoriously dilatory and recover by way of a civil suit takes an inordinately long time. To ensure promptitude and remedy against defaulters and to ensure credibility of the holders of the negotiable instrument a criminal remedy of penalty was inserted in Negotiable Instruments Act, 1881 in form of the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 which were further modified by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002[3].
The importance as to the study of S.138 of the Negotiable Instruments Act lies in the very fact that today it is the most litigated piece of legislation in India. By the way of this project researcher have tried to briefly analyze this section by highlighting its ingredients in light of the judgments given by courts. This section has been elaborately dealt in numerous case-laws by the apex court and other courts of our country which makes the material available on this section to be huge. The main object of this piece of legislation is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. Advent of cheques in the market have given a new dimension to the commercial and corporate world, its time when people have preferred to carry and execute a small piece of paper called Cheque than carrying the currency worth the value of cheque, which makes the study of this section very important.
LANDMARK AMENDMENTS TO THE NEGOTIABLE INSTRUMENTS ACT
DISHONOURED CHEQUE TO BE TREATED AS AN OFFENCE:
From 1st April, 1989, a person issuing a cheque will be committing an offence if the cheque is dishonoured for insufficiency of funds. The offence will be punishable with imprisonment for a term up to one year or with a fine twice the amount of the cheque or both. The Act also provides that the cheque in question should be issued in discharge of a liability and, therefore, a cheque given as gift will not fall in this framework. The cheque in question should be presented within six months or its specific validity period, whichever is earlier. The payee or holder in due course should give notice demanding payment within 15 days of his receiving information of dishonour, which should be for no reason other than insufficiency of funds. The drawer can make payment within 15 days of the receipt of the notice and only if he fails to do so, prosecution can take place. The complaint can be made only by the payee or holder in due course. The complaint is to be made within one month of the cause of action arising. No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate, First Class, will try the offence.[1]
STATEMENT OF OBJECTS AND REASON OF AMENDING ACT, 1988
To enhance the acceptability of cheques in settlement of liabilities for making the drawer liable for penalties in case of bouncing of cheque due to insufficiency of funds in the accounts or for the reason that it exceeds the arrangements made by the drawer with adequate safeguards to prevent harassment of honest drawers.[2]
Clause – 4: This clause inserts a new chapter XVII in the Negotiable Instruments Act, 1881. The provisions contained in the new Chapter provide that where any cheque drawn by any person for the discharge of any liability is returned by the bank unpaid for the reason of the insufficiency of the amount of money standing to the credit of the account on which the cheque was drawn or for the reason that it exceeds the arrangements made by the drawer of the cheque with the banker for that account, the drawer of such cheque shall be deemed to have committed an offence. In that case, the drawer without prejudice to the other provisions of the said Act, shall be punishable with an 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.
The provisions have also been made that to constitute the said offence –
(a) such cheque should have been presented to the bank within a period of six months of the date on which it is drawn or within the period of its validity, whichever is earlier; and
(b) the payee or holder in due course of such cheque should have made 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 unpaid; and
(c) The drawer of such cheque should have failed to make the payment of the said amount of money to the payee or the holder in due course of the cheque within fifteen days of the receipt of the said notice.
It has also been provided that it shall be presumed, unless the contrary is proved, that the holder of cheque received the cheque in discharge of liability. Defenses which may or may not be allowed in any prosecution for such offence have also been provided to make the provisions effective. Usual provisions relating to offences by companies have also been included in the said new Chapter. In order to ensure that genuine and honest bank customers are not harassed or put to inconvenience, sufficient safeguards have also been provided in the new Chapter. Such safeguards are –
(a) that no court shall take cognizance of such offence except on a complaint, in writing, made by the payee or the holder in due course of the cheque;
(b) that such complaints is made within one month of the date on which the cause of action arises;
(c) that no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any such offence.[3]
With the incorporation of a separate Chapter XVII containing sections 138 to 142, the Negotiable Instruments Act, has been amended.
Pursuant to the amendment, a person drawing a cheque on his account with a bank for the discharge, in whole or in part, of any debt or other liability, which is returned by the bank unpaid, either because of the amount of money standing to the credit of such account is insufficient to honour the cheque or that it exceeds that amount arranged to be paid from that account by an arrangement made with the Bank, shall be deemed to have committed an offence and be punished with imprisonment for a term exceeding upto one year or with fine which may extend to twice the amount of the cheque or even with both the penalties. Thus such person in addition to being made liable in a civil suit, can also be made criminally liable.
To safeguard the honest and genuine bank customers, the court will not take cognizance of the offence except in a complaint in writing and no court inferior to that of a Metropolitan Magistrate or a first class Judicial Magistrate shall try the offence.
With this amendment, the Negotiable Instruments Act will acquire a double character. Earlier it was an enactment falling exclusively under civil law confined to civil liability, henceforth; it will also have a penal provision.
STATEMENT OF OBJECTS AND REASONS OF AMENDING ACT, 2001
The Negotiable Instruments Act, 1881 was amended by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 wherein a new Chapter XVII was incorporated for penalties in case of dishonour if cheques due to insufficiency of funds in the account of the drawer of the cheque. These provisions were incorporated with a view to encourage the culture of use of cheques and enhancing the credibility of the instrument. The existing provisions in the Negotiable Instruments Act, 1881, namely, sections 138 to 142 in Chapter XVII have been found deficient in dealing with dishonour of cheques. Not only the punishment provided in the Act has proved to be inadequate, the procedure prescribed for the Courts to deal with such matters has been found to be cumbersome. The Courts are unable to dispose of such cases expeditiously in a time bound manner in view of procedure contained in the Act.
Keeping in view the recommendations of the Standing Committee on Finance and other representations, it has been decided to bring out, inter alia, the following amendments in the Negotiable Instruments Act, 1881, namely –
(i) to increase the punishment as prescribed under the Act from one year to two years;
(ii) to increase the period of issue of notice by the payee to the drawer from 15 days to 30 days;
(iii) to provide discretion to the Court to waive the period of one month, which has been prescribed for taking cognizance of the case under the Act;
(iv) to prescribe procedure for dispensing with preliminary evidence of the complainant;
(v) to prescribe procedure for servicing of summons to the accused or witness by the Court through Speed Post or empanelled private couriers;
(vi) to provide for summary trial of the cases under the Act with a view to speeding up disposal of cases;
(vii) to make the offences under the Act compoundable;
(viii) to exempt those directors from prosecution under section 141 of the Act whoa are nominated as directors of a company by virtue of their holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government, or the State Government, as the case may be;
(ix) to provide that the Magistrate trying an offence shall have power to pass sentence of imprisonment for the term exceeding one year and amount of fine exceeding five thousand rupees;
(x) to make the Information Technology Act, 200 applicable to the Negotiable Instruments Act, 1881 in relation to electronic cheques and truncated cheques subject to such modifications and amendments as the Central Government, in consultation with the Reserve Bank of India, considers necessary for carrying out the purposes of the Act, by notification in the Official Gazette; and
(xi) To amend definitions of “bankers’ books” and “certified copy” given in the Bankers’ Books Evidence Act, 1891.
Section 138. Dishonour of 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 the bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for *[a term which may extend to two years], or with fine which may extend to twice the amount of the 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 thirty 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 purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.
IMPORTANT INGREDIENTS OF S. 138
Object & Purpose:
The Parliament in its wisdom had chosen to bring section 138 on the Statute book in order to introduce financial discipline in business dealings. Prior to insertion of section 138 of the Negotiable Instruments Act, a dishonoured cheque left the person aggrieved with the only remedy of filing a claim. The object and purpose of bringing new provisions in the Act was to make the persons dealing in commercial transactions work with a sense of responsibility and for that reason, under the amended provisions of law, lapse on their part to honour their commitment renders the person liable for criminal prosecution.[4] In our country, in a large number of commercial transactions, it was noted that the cheques were issued even merely as a device not only to stall but even to defraud the creditors. The sanctity and credibility of issuance of cheques in commercial transactions was eroded to a large extent. The Parliament, in order to restore the credibility of cheques as a trustworthy substitute for cash payment, enacted the aforesaid provisions. The remedy available in Civil Court is a long drawn matter and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee.[5]
Scope:
Section 138 of Negotiable Instruments Act, reflects the anxiety of the legislature to usher in a new healthy commercial morality through the instrumentality of the penal law. Here is a classic example where, as part of an attempt to evolve a healthy norm of commercial behaviour, the principal of social engineering through the instrumentality of penal law is put into operation. What was, prior to the amendment of the Negotiable Instruments Act in 1988 only a moral or civil wrong, has been transformed and exalted to the position of a crime by a deft amendment of the Statute.[6]
The essential requirements to attract section 138, Negotiable Instruments Act are:
(a) The cheque for an amount is issued by the drawer to the payee / complainant on a bank account maintained by him.
(b) The said cheque is issued for the discharge, in whole or in part of any debt or other liability.
(c) The cheque is returned by the bank unpaid on account of insufficient amount to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with the bank.
(d) The cheque is presented within 6 months from the date on which it is drawn or within the period of its validity.
(e) 30 days demand notice is issued by the payee or the holder in due course on receipt of information by him from the bank regarding the dishonour of the cheque.
(f) The drawer of said cheque fails to make payment of the said amount of the money to the payee or the holder on due course within 15 days of the said notice.
(g) The debt or liability against which the cheque was issued is legally enforceable.
Component of offence:
Section 138 of the Act makes it an offence where may cheque drawn by a person on any account maintained by him in a Bank for payment of any amount to other person is returned unpaid by the Bank for insufficiency of the deposit or for the amount payable exceeding such deposit. The components of offence under this provision are[7], (a) drawing of the cheque for some amount; (b) presentation of the cheque to the banker; (c) return of the cheque unpaid by the drawee bank; (d) giving of notice by the holder of the cheque or payee to drawer of the cheque demanding payment of cheque amount; (e) failure of drawer to make payment within 15 days of receipt of such notice.[8]
Drawing of a Cheque:
The drawer in payment of a legal liability to discharge the existing debt should have drawn cheque. Therefore any cheque given say by way of gift would not come within the purview of the section. It should be a legally enforceable debt; therefore time barred debt and money-lending activities are beyond its scope.
The words any debt or any other liability appearing in section 138 make it very clear that it is not in respect of any particular debt or liability The presumption which the Court will have to make in all such cases is that there was some debt or liability once a cheque is issued. It will be for the accused to prove the contrary. i.e., there is no debt or any other liability. The Court shall statutorily make a presumption that the cheques were issued for the liability indicated by the prosecution unless contrary is to be proved[9].
Where the Complaint lacks necessary ingredients of the offence under Section 138: Hon’ble Supreme Court in JugeshSehgal Vs. Shamsher Singh Gogi[10] 2009(3) CC Cases (SC) 2004. The Supreme Court noted that the cheque alleged to have been issued by the petitioners to the complainant was issued from an account pertaining to some other person. The Court also noted that one of the essential ingredients of the offence punishable under Section 138 of Negotiable Instruments Act is that the cheque must have been drawn on an account maintained by the accused. Since the cheque in the case before the Supreme Court was not issued from the account maintained by the petitioner, it was held that one essential ingredient of offence under Section 138 of Negotiable Instruments Act was not[11].
Presentation of Cheque:
The presentation of cheque should be within its validity period. Generally a cheque is valid for six months, but there are cheques whose validity period is restricted to three months etc. The question arises as to which bank the cheque should reach within the validity period, is it the payee to his bank presents that of drawer’s bank or it is enough if the cheque before six months. The courts are divided on the issue. But common sense demands that the cheque should reach the drawer bank within the period of validity as it is that bank that either pays or rejects payment as per the situation existing on that day[12].
Supreme Court in Sadanandan Bhadran vs. Madhavan Sunil Kumar[13], It was also held that while the payee was free to present the cheque repeatedly within its validity period, once notice had been issued and payments not received within 15 days of the receipt of the notice, the payee has to avail the very cause of action arising thereupon and file the complaint[14]. Dishonour of the cheque on each re-presentation does not give rise to a fresh cause of action.
Returning Of the Cheque Unpaid:
Lot of controversy had arisen on the issue. What reasons are relevant to hold the drawer of the cheque criminally responsible for bouncing of a cheque. The case laws on the subject have now made the position clear. It is not what the bank says in its return memo that is relevant but the actual position as on the date when the cheque reaches the drawer bank whether there were enough funds in the drawer account to honour the cheque. The following judgments bring out the correct legal position: Rakesh Nemkumar Porwal v. Narayan Dhondu Joglekar[15] : Any reason for dishonour is an offence.
J. Veeraraghavan v. Lalith Kumar[16]: Any reason for dishonour is an offence. S. 138 of the NI Act Marginal Note stating "Dishonour of cheque for insufficiency etc. of funds in accounts" addition of word "etc." cannot be considered to be an accident.
Disagreeing with Hunasikathimath case[17] , Karnataka H.C., who following Punjab and Haryana H.C. in theAbdul Samad case[18] and by a learned single Judge of Bombay H.C. in Om Prakash case, terming them as rigid and wooden view states:
"there is no other go for us except to agree to disagree with the views expressed herein, in as much as such a view, apart from suffering from a serious infirmity of erroneous interpretation of the relevant provisions of the Act, is to frustrate the very object and purpose for which the relevant provisions had been introduced by the amending Act. It is to be noted that this sort of a view is not negligibly supported by the very title of the Chapter Of penalties in case of dishonour of certain cheques for insufficiency of funds in the accounts (Emphasis supplied.) Equally important it is to note that the marginal note to sec. 138 of the Act states …………. Top of all, such sort of a view, if accepted and followed, the statutory provisions of Chapter XVII, introduced by amending Act, would become a dead letter and a non-sense situation would be created, in the sense of posing insurmountable obstacle in the free negotiability and acceptability of the cheques in the fast moving commercial transactions at regional, national and global level, creating a calamitous situation in the commercial world.
With respect, we agree fully with the view expressed by the Dn. Bench of Bom. HC in the case of Rakesh Porwal[19] and of the Kerala HC in the case of Thomas Verghese[20] and a single Judge of the Rajasthan HC in the case of Pearay Lal Rajendra Kumar P Ltd[21], in as much as such a view had been arrived at in interpreting the various expressions and words used in the relevant provisions in a meticulous fashion keeping in view the object and reasons for which such a provision had been introduced with the avowed purpose of achieving the object for which it was enacted."
Notice:
Notice is a very important stage. It is the non-payment of dishonoured cheque within fifteen days from the receipt of the notice that constitutes an offence. Issuing of a cheque and its dishonour is not an offence. The offence is when the drawer receives a notice from the payee and he fails to pay the dishonoured cheque amount within the grace period of 15 days that constitute an offence. Any demand made after the dishonour of cheque will constitute a notice. It is not necessary that the notice should be sent by Registered Post alone, it could be sent even by fax. It is not necessary that the notice should be in any particular form or style. What is essential is that there should be a demand to pay the dishonoured cheque amount.
It is held by the Supreme Court that while the cheque could be presented at any number of times however there shall be only one Notice. The following case may be noted on the subject:
Sadanandan Bhadran v. Madhavan Sunil Kumar[22]
Complaint U/s. 138- Maintainability - conditions precedent to applicability of sec. 138 - A cheque can be presented any number of times during the period of its validity- Whether dishonour of the cheque on each occasion of its presentation gives rise to a fresh cause of action within the meaning of Sec. 142(b) of the act - Held No. - A competent court can take cognizance of a written complaint of an offence u/s.138 if it is made within one month of the date on which the cause of action arises under clause c of Sec.142 gives it is a restrictive meaning - it is the failure to make payment within 15 days from date of receipt of notice which will give rise to cause of action - Cause of action within meaning of Sec. 142 (c) arises and can arise only once - impediments which negate concept of successive causes of action
Held.:
On each presentation of the cheque and its dishonour a fresh right and not cause of action - accrues in his favour. He may, therefore, without taking pre-emptory action in exercise of his right under clause (b) of Section 138, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. But, once he gives a notice under clause (b) of Sec. 138 he forfeits such right for in case of failure of the drawer to pay the money within the stipulated time he would be liable for the offence and the cause of action for filing the complaint will arise. Needless to say, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of fifteen days from the date of the receipt of the notice by the drawer expires. No action taken on the first notice - cheque presented again - second notice sent - on failure to receive money case filed on the basis of second notice - Acquittal on ground that there could not be more than one cause of action in respect of a single cheque - sustainable - Appellant had earlier taken recourse to clause (b) of Sec. 138 but did not avail of cause of action that arose in his favour u/s. 142(b) of the Act.
Therefore it is essential that the notice should be perfect and in conformity with law. A mistake in the notice will be fatal. It is common mistake committed by most of the payees that as soon as the cheque is returned unpaid to write a letter to the drawer threatening him that in case he does not pay against the dishonoured cheque legal action will be taken etc. Such letter will also be construed as a notice. Since a second notice cannot now be issued on the basis of subsequent dishonour of cheque, due care and caution should be taken while sending the notice on dishonour of cheque.
As stated already that non-payment of cheque amount within the grace period of fifteen days from the date of receipt of the notice constitutes an offence and therefore liable to prosecuted for the criminal offence so committed.
Limitation:
These being a special legislation certain time limits have been laid down and they should be strictly followed. Any lapse in adhering to the schedule, shall take away a cause of action under Sec. 138. The time limits placed cannot be condoned by the Courts. Therefore the question of making an application for condonation of delay as in the case of civil does not arise at all under the said section. What then are the limitations one has to keep in one mind and follow them strictly to prosecute the drawer of cheque who has failed to pay the said sum within fifteen days from the receipt of the notice?
• Cheque should be presented to the bank for encashment within its validity period.
• Within fifteen days from the receipt of return memo indicating reason of dishonour, a notice should be sent demanding the amount of dishonored cheque.
• If the drawer does not pay the amount of dishonoured cheque within the grace period, a complaint thereafter should be filed within one month in the relevant court of Metropolitan Magistrate/Judicial Magistrate as the case may be, having jurisdiction.
Jurisdiction:
Territorial jurisdiction - Dishonour of cheque - Complaint can be filed at any of the place: -
1. Where the cheque was drawn.
2. Where the cheque was presented for encashment.
3. Where the cheque was returned unpaid by drawee bank.
4. Where notice in writing was given to drawer of cheque demanding payment.
5. Where drawer of cheque failed to make payment within 15 days of receipt of notice.
Each of the fine acts constituting offence could be done at 5 different localities. Hence one of the Courts exercising jurisdiction in one of the five local areas can become the place of trail for the offence under sec. 138 of the Act. In other words, the complainant can choose any one of those courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done.
CONCLUSION
Though insertion of the penal provisions have helped to curtail the issue of cheque lightheartedly or in a playful manner or with a dishonest intention and the trading community now feels more secured in receiving the payment through cheques. However there being no provision for recovery of the amount covered under the dishonoured cheque, in a case where accused is convicted under section 138 and the accused has served the sentence but, unable to deposit amount of fine, the only option left with the complainant is to file civil suit. The provisions of the Act do not permit any other alternative method of realization of the amount due to the complainant on the cheque being dishonored for the reasons of "insufficient fund" in the drawer’s account. The proper course to be adopted by the complainant in such a situation should be by filing a suit before the competent civil court, for realization/ recovery of the amount due to him for the reason of dishonoured cheque, which the complainant is at liberty to avail of if so advised in accordance with law.
[1] Source: PIB Press Release, dated 29-3-89.
[2] Vide Gazette of India, Extra., No. 49, dated 5th September, 1988.
[3] Ins. By Gazette of India, Extra., No. 49, dated 5th September, 1988, pp.18, 19.
[4] Sant Lal Bhatia v. City Credit and Leasing Company, III (2002) BC 210 (P&H).
[5] Goa Plast (P) Ltd. v. Chico Urrsula D’souza, I (2004) BC 246: (2004) 2 SCC 235 (SC).
[6] M.S. Anil Kumar v. Shaney, II (2003) BC 466 (Ker).
[7] 'Harman Electronics (P) Ltd., V. National Panasonic India Ltd., (2008) 16 SCALE 317
[8] Prakash Jewellers v. A.K. Jewellers, III (2002) BC 404 (Del) (DB)
[9] 'Shivakumar V. Natarajan' - (2009) 27 CLA -BL Supp 62 (SC))
[10] 2009(3) CC Cases (SC) 2004
[11] Prakash Jewellers v. A.K. Jewellers, III (2002) BC 404 (Del) (DB)
[12] Central Bank of India and Anr. Vs. M/s. Saxons Farms & Ors, 1999 Crl.L.J. 4571.
[13] JT 1998 (6) SC 48),
[14] Prem Chand Vijay Kumar vs. Yashpal Singh & Anr. [(2005) 4 SCC 417].
[15] (1993) Cri. LJ 680
[16] (1995) Cri. LJ 1882 ( Mad) (DB)
[17] (1991) (1) Cri. LJ 226
[18] (1990) RCR 335 (P&H)
[19] (1993) Cri. LJ 680
[20] (1992) Cri L J 3080 (DB)
[21] (1993) 3 Cri LJ 395
[22] (1998) 4 SCALE SC
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