u/s. 138 of n.i.act
Querist :
Anonymous
(Querist) 28 October 2011
This query is : Resolved
Out of total consideration amount, accused had given Rs.16, 30,000/- by two cheques each of Rs.8, 15,000/- dated 5-5-2008. Out of these cheques, one cheque was given in the name of complainant bearing No. 7020272 and other cheque was given to complainant's brother. Said cheques were given towards part payment of sale consideration.
Complainant encased this cheque on 17-5-2008.
His bank informed him on 21-5-2008 that said cheque was dishonored and bank returned it with memo with reason 'Drawer's Signature Differs'. Though the accused assured
Complainant that said cheque was encased, but this was dishonored. Thus, accused cheated the complainant and committed an offence u/s 138 of Negotiable Instrument Act.
4. Complainant issued notice through his Advocate dated 27-5-2008 to accused. Said notice was not received by accused and returned with endorsement that accused could not be contacted at the time of duty and hence returned to the sender after lapse of time. Again complainant issued a notice on 16-6-2008 by registered post as well as by U.P.C. It was returned with remark that addressee did not come to the city in spite of lapse of time. Notice sent by U.P.C. was served, as it was not returned. It means that accused get the notice.
MY QUESTION IN ABOVE CASE U/S. 138 OF N.I.ACT
. IF AFTER ISSUING FIRST NOTICE OF DISHONOUR OF CHEQUE IF REMAIN UN SERVED, TO ACCUSED AND IF ON SECOND TIME SAME NOTICE SENT TO ACCUSED, THEN, FROM WHERE, THE PERIOD OF LIMITATION TO BE COUNTED FOR FILING THE COMPLAINT?
Arvind Singh Chauhan
(Expert) 28 October 2011
I think 'Drawer's Signature Differs' does not cover 138 NI Act. Complainant has civil remedy.
Guest
(Expert) 28 October 2011
First of all you have to see whether your notice was issued covering the correct section of the NI Act or not, as your case does not fall within the scope of Sec.138 of NIA. Sec.138 deals with the cases of insufficient funds or exceeding the amount arranged.
About limitation, you have already done your duty of issuing notice, so along with the petition, better file an application for condonation of delay also duly making a mention of process of notices and return back of notices, as sent by registered post. The court is likely to consider the notice deemed to have been served by you.
ajay sethi
(Expert) 28 October 2011
complaint under section 138 not maintanable if signature differs
Signature differs – accused admitted – accused admitted his liability Under Section313 statement – no reply to notice also - but the signature available in cheque not that of accused – no proof of issuance of cheque – accused cannot be convicted. 2002 Crl.L.J. 3255 Ker.
ajay sethi
(Expert) 28 October 2011
gujrat high court in mustafa v/s state
has held that no complaint is maintanable under section 138 if cheque is dishonoured on grounds signature differs .
ajay sethi
(Expert) 28 October 2011
Mustafa vs State on 19 April, 2010
Author: Anant S. Dave,&Nbsp;
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SCR.A/2118/2009 13/ 13 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION Nos. 2118 to 2143 of 2009
With
SPECIAL
CRIMINAL APPLICATION Nos. 292 to 305 of 2010
=============================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=============================================
MUSTAFA
SURKA - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=============================================
Appearance :
MR
AMAR N BHATT for MR ADITYA B MEHTA for Applicant(s) : 1, MR LR
PUJARI, MR SHIVANG J SHUKLA & MR KARTIK PANDYA APPs for Respondent : 1, MR MB GOHIL for Respondent(s) : 2,
=============================================
CORAM
:
HONOURABLE MR.JUSTICE ANANT S. DAVE
Date
: 19/04/2010
COMMON
ORAL ORDER
Rule.
Learned Additional Public Prosecutors and learned advocate Mr.M.B.Gohil waive service of notice of rule for respondent No.1 and respondent No.2 respectively.
2. All
these petitions under Articles 226 and 227 of the Constitution of India and under Section 482 of the Code of Criminal Procedure, 1973 are filed by the petitioner-original accused No.5 with a prayer to issue appropriate writ order or direction to quash and set aside the orders issuing process qua the petitioner-original accused No.5 and to quash and set aside the impugned criminal cases pending in the Court of learned Metropolitan Magistrate, Negotiable Instrument Act, Court No.7 at Ahmedabad. All these petitions arise out of common question of applicability of provisions of Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act") and at the request of learned advocates for the parties, all these petitions are taken up for final hearing today itself.
3. That
the details about each petition filed against issuance of process by the learned Magistrate in each criminal case and other details are mentioned in a tabular form, which is as under:
Sr.
No.
Special
Criminal Application no.
Criminal
Case no.
Reason
for Dishonor
Cheques
dated
Cheque
Returned Date
Notice
date
Reply
date
2118/09
6731/
09
No
image found - Signature
18/09/08, 19/09/08 & 20/09/08
18/03/09
13/04/09
27/04/09
2119/09
6732/09
No
image found
13/09/08, 17/09/08
16/03/09
13/04/09
27/04/09
2120/09
6733/09
No
image found - Signature
13/09/08, 14/09/08 & 15/09/08
18/03/09
13/04/09
27/04/09
2121/09
6734/09
Drawers
Signature Incomplete - Illegible
30/08/08, 02/09/08 & 15/09/08
03/03/09,
04/03/09
&
16/03/09
02/04/09
27/04/09
2122/09
6735/09
No
Signature image found
22/09/08,
02/09/08
&
15/09/08
20/03/09
13/04/09
27/04/09
2123/09
6736/09
No
Signature image found
16/09/08,
17/09/08
&
18/09/08
18/03/09
13/04/09
27/04/09
2124/09
6737/09
Drawers
Signature Incomplete
04/09/08,
06/09/08
&
08/09/08
07/03/09
02/04/09
27/04/09
2125/09
6738/09
No
image found
11/08/08,
09/09/08
&
10/09/08
12/03/09
13/04/09
27/04/09
2126/09
6739/09
No
image found-Signature
10/09/08,
11/09/08
&
12/09/08
18/03/09
13/04/09
27/04/09
2127/09
6740/09
No
image found-Signature
07/09/08,
08/09/08
&
09/09/08
18/03/09
13/04/09
27/04/09
2128/09
6742/09
No
image found
02/08/08,
06/08/08,
08/08/08
&
10/08/08
06/02/09,
10/02/09,
11/02/09&
31/03/09
25/02/09
12/03/09
2129/09
6743/09
Drawers
Signature Incomplete-Illegible
15/10/08,
17/10/08
&
13/10/08
10/04/09
05/05/09
18/05/09
2130/09
6744/
09
Drawers
Signature Incomplete - Illegible
16/10/08,
15/10/08
&
14/10/08
11/04/09
09/05/09
18/05/09
2131/09
6745/09
Drawers
Signature Incomplete-Illegible
09/10/08,
11/10/08
&
13/10/08
11/04/09
09/05/09
18/05/09
2132/09
6746/
09
Drawers
Signature Incomplete-Illegible
21/10/08,
22/10/08
&
22/10/08
20/04/09
09/05/09
18/05/09
2133/09
6747/09
Drawers
Signature Incomplete-Illegible
24/09/08,
24/09/08
&
25/09/08
24/03/09
22/04/09
2134/09
6748/09
Drawers
Signature Incomplete-Illegible
09/11/08,
14/11/08
&
14/11/08
05/05/09
09/05/09
18/05/09
2135/09
6749/09
No
Image Found & Drawers signature differs from the specimen supplied
23/08/08,
17/08/08
&
22/08/08
24/04/09,
21/02/09
&
21/02/09
21/03/09
30/03/09
2136/09
6750/09
Drawers
Signature Incomplete-Illegible
01/10/08,
30/09/08
&
30/09/08
30/03/09
22/04/09
2137/09
6751/09
Drawers
Signature Incomplete-Illegible
29/10/08,
30/10/08
& 31/10/08
29/04/09
09/05/09
18/05/09
2138/09
6752/09
Drawers
Signature Incomplete-Illegible
25/10/08,
27/10/08
& 28/10/08
24/04/09
09/05/09
18/05/09
2139/09
6753/09
Drawers
Signature Incomplete-Illegible
23/10/08,
24/10/08
& 25/10/08
23/04/09
09/05/09
18/05/09
2140/09
6754/09
Drawers
Signature Incomplete-Illegible
17/10/08
18/10/08 &
20/10/08
11/04/09
09/05/09
18/05/09
2141/09
6755/09
Drawers
Signature Incomplete-Illegible
10/10/08,
12/10/08
&
13/10/08
09/04/09
05/05/09
18/05/09
2142/09
6756/09
Drawers
Signature Incomplete-Illegible
27/09/08,
26/09/08
&
29/09/08
26/03/09
22/04/09
2143/09
6741/09
No
image found
05/08/08,
09/08/08
&
11/08/08
05/02/09,
09/02/09
&
11/02/09
Notice
not issued to us.
-
292/2010
7392/09
Drawers
Signature Incomplete-Illegible
01/11/08, 03/11/08 &
04/11/08
20/05/09
27/05/09
05/06/09
293/2010
7393/09
Drawers
Signature Incomplete-Illegible
24/11/08, 25/11/08 &
26/11/08
18/05/09
21/05/09
01/06/09
294/2010
7394/09
Drawers
Signature Incomplete-Illegible
20/11/08, 21/11/08 &
22/11/08
16/05/09
21/05/09
01/06/09
295/2010
7395/
09
Drawers
Signature Incomplete-Illegible
07/11/08
&
10/11/08
20/05/09
27/05/09
05/06/09
296/2010
7396/09
Drawers
Signature Incomplete-Illegible
27/11/08, 28/11/08 &
29/11/08
22/05/09
27/05/09
04/06/09
297/2010
7397/09
Drawers
Signature Incomplete-Illegible
11/11/08
&
12/11/08
20/05/09
27/05/09
05/06/09
298/2010
7398/09
Drawers
Signature Incomplete-Illegible
04/12/08, 05/12/08 & 06/12/08
26/05/09
04/06/09
15/07/09
299/2010
7399/09
Drawers
Signature Incomplete-Illegible
08/12/08, 09/12/08 & 10/12/08
26/05/09
04/06/09
15/07/09
300/2010
7400/09
Drawers
Signature Incomplete-Illegible
11/12/08, 12/12/08 &
13/12/08
03/06/09
27/05/09
05/07/09
301/2010
7401/09
Drawers
Signature Incomplete-Illegible
14/11/08, 15/11/08 &
17/11/08
08/05/09
13/05/09
28/05/09
302/2010
7402/09
Drawers
Signature Incomplete-Illegible
01/12/08, 02/12/08 & 03/12/08
26/05/09
04/06/09
303
of 2010
7403/09
Drawers
Signature Incomplete-Illegible
17/11/08, 18/11/08 & 19/11/08
09/05/09
13/05/09
28/05/09
304/2010
7404/09
Drawers
Signature Incomplete-Illegible
19/12/08, 19/12/08 &
20/12/08
14/05/09
21/05/09
01/06/09
305/2010
7405/09
Drawers
Signature Incomplete-Illegible
05/11/08, 06/11/08 &
08/11/08
20/05/09
27/05/09
05/06/09
4. The
basic facts of the petitions are as under:
The
basic fact on which common question that has arisen in all these petitions is not in dispute. In all these petitions, complaint is based on the ground that cheques drawn by the petitioner-original accused No.5 have been returned/dishonoured by the banker with endorsement "drawers signature differs from the specimen supplied" and/or "no image found-signature" and/or "incomplete signature / illegible". The above endorsement according to learned advocate for the petitioner-original accused would not constitute offence under Section 138 of the Act, and therefore, the complaints are liable to be quashed and set aside.
5. This
Court is confronted with the common question raised by the learned advocate for the petitioner that whether the complaint under Section 138 of the Act is maintainable when the banker of the drawer sent intimation to the drawee about dishonour of the cheque on the ground that "drawers signature differs from the specimen supplied" and/or "no image found-signature" and/or "incomplete signature / illegible".
6. At
the outset, learned advocate for the petitioner placed reliance on the decision of the Apex Court in the case of Vinod Tanna and another v. Saher Siddiqui and others, reported in (2002)7 SCC 541 and submitted that dishonour of chque because of incomplete signature of the drawer do not attract Section 138 of the Act and criminal proceedings initiated under Sections 138 and 142 of the Act required to be quashed and set aside. Learned advocate for the petitioner further relied on the decision dated 08.02.2010 rendered by learned Judge of the High Court of Judicature at Bombay (Coram : Hon'ble Mr. Justice S.C.Dharmadhikari) in Criminal Application Nos.4434 of 2009 and allied matters where the Hon'ble Judge decided the very issue involved in these petitions and where the petitioner was one of the parties.
7. In
the facts of these cases, the petitioner-accused No.5 was the authorized signatory of accused No.1 company. The petitioner joined the above company as Financial Manager on 15.11.2002 and later on promoted to the post of General Manager on 20.07.2006. The petitioner resigned vide letter dated 18.11.2008, which was duly served upon the company. The dispute arises on unpaid amount of supplied and delivered goods. It is the case of the petitioner that upon resignation submitted by the petitioner, the management of the company informed the bank to remove and/or cancel signature of the petitioner from the bank record. Though the complainant was aware of the said fact, by suppressing the same, complaint is filed. The above basic fact remained common in all the petitions.
8. Mr.Gohil, learned advocate for the respondent No.2-complainant is unable to dispute the ground/reason or the basis on which the cheques were doshonoured viz. "drawers signature differs from the specimen supplied" and/or "no image found-signature" and/or "incomplete signature / illegible". It is not the case of the complainant that the cheques are dishonoured due to insufficiency of fund or arrangement in this regard exceeded. Further, it is not in dispute that the very question/issue involved in these petitions is decided by the learned Judge of the High Court of Judicature at Bombay vide order dated 08.02.2010 in Criminal Application No.434 of 2009 and allied matters.
9. While deciding the question whether the complaint can be said to be maintainable when the reasons for return/dishonouring cheques unpaid are other than insufficiency of funds, the learned Judge in para 16 stressed insertion of amendment by the Act of 66 of 1988 with effect from 1.4.1989 by which basically drawer was made liable for penal action in case of return or dishonouring of cheques due to insufficiency of funds in the account or for the reason that it exceeds the arrangement made by the drawer to enhance acceptability of cheques in settlement of liability, which may provide sufficient and adequate safeguard. Having considered Chapter XVII titled as "Of penalties in case of dishonour of certain cheques for insufficiency of funds in the accounts" and wordings of Section 138 "Dishonour of cheque for insufficiency, etc., of funds in the account" and principles governing interpretation of a provision creating legal fiction in paras 22, 23 and 24, it is held as under:
22.
In any event, after the Division Bench decision was renderred, much
water
has flown. In two decisions of the Hon'ble Supreme Court to which my attention has been invited by Shri. Mundargi, the view taken is that if the cheque is returned with the remark or reason "cheque lost by the drawer" or "signature of the drawer being incomplete , then, Section 138 cannot be invoked. I am bound by these decisions. In Vinod Tanna's case (supra), the Supreme Court referred to its earlier decisions in the case of Modi Cements (supra), K.K. Sidharthan, Electronics Trade & Technology Development Corporation Ltd (supra) and distinguished Modi Cements case and referred to the other two cases. There the order of this court refusing the prayer of the accused to quash the criminal proceedings was under challenge. The complaint before the Supreme Court was that the cheque was not dishonoured for insufficiency of funds but on the ground that the drawer's signature was incomplete. It is in that context that in paragraph-5 the Supreme Court held thus :
"Mr.
Bobde, learned Senior Counsel appearing for the appellants contends that the High Court has failed to appreciate the ratio of the judgment of this Court in Modi Cements case inasmuch as in paragraph 11 of the said judgment, the Court had recorded a conclusion that it is in complete agreement with the legal proposition enunciated in Electronics Trade & Technology Development Corpn. Ltd. v. Indian Technologists & Engineers (Electronics) (P) Ltd. as well as K.K. Siddharthan v. T.P. Praveena Chandran. In these two cases, the cheque in question had been dishonoured because of insufficiency of funds or the amount exceeded the arrangement made with the bank and in Electronics Trade & Technology Development Corpn. Ltd. the cheque had not been honoured because of the direction from the drawer regarding stoppayment. In fact, a plain reading of Section 138 of the Act makes it crystal clear that unless the conditions precedent mentioned therein are satisfied, the said penal provision cannot be attracted. In this view of the matter and on the admitted facts, as rendered to in paragraph 5 of the impugned judgment, we have no hesitation in coming to the conclusion that the High Court committed error in relying upon the judgment of this Court in Modi Cements and refusing to quash the criminal proceedings. We accordingly set aside the impugned judgment of the High Court, quash the criminal proceedings and allow the criminal appeal."
23.
In the second Decision, Raj Khurana (supra), the Supreme Court was
concerned with maintainability of the complaint when the Bank Memo stated "cheque lost by the Drawer". Answering the question in the negative, the Supreme Court holds thus:
9.
Section 138 of the Act reads as under :
"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 that 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 be extended 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."
10.
A bare perusal of the aforementioned provision would clearly go to show that by reason thereof a legal fiction has been created. A legal fiction, as is well known, although is required to be given full effect, has its own limitations. It cannot be taken recourse to for any purpose other than the one mentioned in the statute itself.
In
State of A.P. and Anr. v. A.P. Pensioners Association and Ors. [(2005) 13 SCC 161], this Court held:
"...In
other words, all the consequences ordinarily flowing from a rule would be given effect to if the rule otherwise does not limit the operation thereof. If the rule itself provides a limitation on its operation, the consequences flowing from the legal fiction have to be understood in the light of the limitations prescribed. Thus, it is not possible to construe the legal fiction as simply as suggested by Mr. Lalit."
11.
Section 138 of the Act moreover provides for a penal provision. A penal provision created by reason of a legal fiction must receive strict construction. [See R. Kalyani v. Janak C. Mehta and Ors. (2009) 1 SCC 516 and DCM Financial Services Ltd. v. J.N. Sareen and Anr. (2008) 8 SCC 1]. Such a penal provision, enacted in terms of the legal fiction drawn would be attracted when a cheque is returned by the bank unpaid. Such nonpayment may either be: (i) because of the amount of money standing to the credit of that account is insufficient to honour the cheque, or (ii) it exceeds the amount arranged to be paid from that account by an agreement made with that bank.
Before
a proceeding thereunder is initiated, all the legal requirements therefor must be complied with. The court must be satisfied that all the ingredients of commission of an offence under the said provision have been complied with.
The
parameters for invoking the provisions of Section 138 of the Act, thus, being limited, we are of the opinion that refusal on the part of the bank to honour the cheque would not bring the matter within the mischief of the provisions of Section 138 of the Act.
24.
In the face of these authoritative pronouncements, it will not be proper for me to hold that in a complaint, if the reason for dishonour or return of the cheque as unpaid, being other than insufficiency of funds and particularly in relation to the signature or defects therein, then it is maintainable. In the later Decision, the effect of a Deeming provision and Legal fiction is considered and it is held that the language cannot be extended to cover anything or stretched beyond its limited purpose.
10. In the above judgment, the learned Judge of the High Court of Judicature at Bombay has also considered the authoritative pronouncement of the Apex Court in the case of Vinod Tanna (supra) and ultimately after considering the dictionary meaning "etc.", in para 26 it is
held that if there is no allegation that the accused did not have sufficient funds in the bank account and the cheque is returned unpaid for want of compliance with the requirement of the signature thereon not matching with that of the specimen signature or the chqeue being returned with the remark, then the complaint cannot be held to be maintainable under section 138 of the Act. In paras 28 and 29 of the above judgment, the learned Single Judge held as under:
"28.
As far as the decision of the learned Single Judge of this court in Jaikrishna s/o. Mahadeorao Patil (supra) case is concerned, the said decision is delivered on 30/01/2006. The attention of the learned Single Judge was not invited to the decision of Supreme Court in the case of Vinod Tanna's (supra).
That
apart, on evidence and in peculiars facts emerging from the records that the learned Judge took the view that the accused had committed an offence punishable under Section 138 of N.I. Act. That must be seen as rendered in the peculiar facts and circumstances before the learned Judge and not laying down any general principles, much less, holding that the complaint can be said to be maintainable if the reason for dishonour is other than that enumerated in Section 138 of N.I. Act. In the result, it is held that whenever the complaint under Section 138 of N.I. Act is alleging that the cheque in question had not been honoured or returned unpaid only on account of defect or deficiency in signature, then the complaint under Section 138 of N.I. Act would not be maintainable. However, if the complaint also alleges commission of offence under Section 415, 420 of IPC, then, to that extent, it can be held to be maintainable but no process for summoning the accused for charge punishable under Section 138 of N.I. Act can be issued.
29.
In the light of the above, the applications where the complaints are
alleging
commissions of offence under Section 138 of N.I. Act when the only reason for the cheque being returned unpaid is defect or deficiency in Drawer's signature, then, they are held as not maintainable. They will have to be quashed to the extent indicated above. Rule made absolute accordingly."
11. In the instant case, there is no dispute about the endorsement that "drawers signature differs from the specimen supplied" and/or "no image found-signature" and/or "incomplete signature / illegible" and for return/dishonour of cheque on the above endorsement will not attract ingredients of Section 138 of the Act and insufficient fund as a ground for doshonouring cheque cannot be extended so as to cover the endorsement "signature differed from the specimen supplied" or likewise. If the cheque is returned/bounced/dishonoured on the endorsement of "drawers signature differs from the specimen supplied" and/or "no image found-signature" and/or "incomplete signature / illegible", the complaint filed under Section 138 of the Act is not maintainable. Hence, a case is made out to exercise powers under Section 482 of the Code of Criminal Procedure, 1973 in favour of the petitioner.
12. Considering the above and on perusal of the record of the case and the law laid down by the learned Judge of the High Court of Judicature at Bombay and decision of the Apex Court in the case of Vinod Tanna (supra) and plain reading of section 138 of the Act, I am in complete agreement with the reasoning and grounds advanced by the learned Judge of the High Court of Judicature at Bombay in a well considered decision. Therefore, I am inclined to allow all these petitions by quashing and setting aside the impugned process issued by the learned Magistrate pursuant to filing of Criminal cases arising out of dishonour of cheques on the ground of "drawers signature differs from the specimen supplied" and/or "no image found-signature" and/or "incomplete signature / illegible".
13. In
view of the above discussion, all these petitions succeed and same are allowed and the impugned process issued by the learned Metropolitan Magistrate, Negotiable Instrument Act, Court No.7 at Ahmedabad and further proceedings of the complaints impugned in all these petitions qua the petitioner are quashed and set aside.
Rule is made absolute to the aforesaid extent only.
[Anant
S. Dave, J.]
*pvv
Top
Advocate Bhartesh goyal
(Expert) 28 October 2011
Better you file civil suit against accused as sec 138 of N.I Act does not attract on ground of signature differs.
prabhakar singh
(Expert) 28 October 2011
NOTHING WOULD BE NEEDED IF ONE THE MAGISTRATE
OR A LAWYER OR EVEN A LAYMAN IS READY TO READ THE FOLLOWING AND READY TO UNDERSTAND IN SIMPLE WAY:
"......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 that 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 2["a term which may extend to two year"], or with fine which may extend to twice the amount of the cheque, or with both:....."
NO WHERE IT MENTIONS ABOUT RETURN OF CHEQUE
TO CONSTITUTE OFFENCE UNDER THIS 138 N I ACT EVEN WHEN CHEQUE STOOD RETURNED DUE TO MISMATCH OF SIGNATURE.
HOWEVER I INVITE OPINION FROM EXPERTS PRACTICING CRIMINAL LAW THAT IF IT IS SHOWN THAT THE SAME ACT WAS DELIBERATELY DONE IN ORDER TO CHEAT THE PAYEE AND ITS HOLDERS IN DUE COURSE AN OFFENCE UNDER SECTION 420 IPC OR SOME THING OF THAT LIKE WOULD BE CONSTITUTED OR NOT.
ALTHOUGH IN THE INSTANT CASE SUCH AN OFFENCE MAY NOT GET ATTRACTED AS BETWEEN TWO ,ONE STOOD HONORED.
prabhakar singh
(Expert) 28 October 2011
Thank you very much dear A.K.Bhagat.
Guest
(Expert) 28 October 2011
Prabhakar ji,
With reference to your post of date, your kind attention is invited to section 30 of the NI Act, which clearly lays down the liability on the part of the drawer of the cheque on account of dishonour of cheque on any account. The extract of the section is reproduced below for your kind information please:
EXTRACT OF SEC.30
"The drawer of a bill of exchange or cheque is bound in case of dishonour by the drawee or acceptor thereof, to compensate the holder, provided due notice of dishonour has been give to, or received by, the drawer as hereinafter provided."
Shonee Kapoor
(Expert) 28 October 2011
Cool.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
