138 n i act.
Santosh S. Avhad
(Querist) 18 February 2013
This query is : Resolved
A Company was received the amount from NRI (complainant) as a Share application money. the company neither issued any shares nor refund his amount to the NRI. NRI person came in india and he pressure to director of the company that you executed the loan agreement and issued cheques to him. As per his request the director executed the loan agreement and issued 6 post dated cheques to him. Later on the director informed to the Complainant that the said cheque shall not deposited in bank, instead that the complainant had deposited the said cheque and cheques dishonored. He filed a criminal complaint U/sec. 138 N I Act against all accused ie. director of the company. 1) can the complainant convert the share application money into loan?
2) in above said transaction the 138 NI Act is maintainable or not?
3) 138 NI Act is applicable or nor when the accused informed not deposit the cheuques in bank to the complainant?
4) any Rule and regulation about the convert the share application money into loan? 5) any more suggestion or judgements/
Nadeem Qureshi
(Expert) 18 February 2013
Dear Santosh
Read the below
138. Dishonour of cheque for insufficiency, etc., of funds in the accounts
1[CHAPTER XVII]
OF PENALTIES IN CASE OF DISHONOUR OF CERTAIN CHEQUES FOR INSUFFICIENCY OF FUNDS IN THE ACCOUNTS
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 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:
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 induce 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, 3["within thirty days"] of the receipt of information by him from the bank regarding the return of the cheques 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 other liability" means a legally enforceable debt or other liability].
OBJECTS AND REASONS OF AMENDING ACT OF 2002
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 of cheques due fo 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 the procedure contained in the Act- (Para 1)
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 for issue of notice by the payee to the drawer from 15 days to 30 days; (Para 4)
Feel free to call for judgements or other Legal drafting
Raj Kumar Makkad
(Expert) 19 February 2013
In the given case, the criminal complaint under section 138 NI Act is not maintainable especially when the director already intimated the complainant by way of registered letter that he should not present the cheuqes in his cutody.
Sudhir Kumar, Advocate
(Expert) 21 February 2013
It was civil liability of the company. He has voluntarily waived off his right to move for winding up of campany. The debt is tenable.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 21 February 2013
Supreme court has clearly directed recently on November 27, 2012 that
dishonor of any cheque as per NI 138 is genus and all other reasons are only species of that genus.
And hence cr complaint is liable for any reason of cheque bounce, however accused can take defense of legal liabiity.
In the instant case other Directors can get out of vicarious liability since SM FARMA case of APEX COURT is a good law till date.
Raj Kumar Makkad
(Expert) 21 February 2013
Advocate Defense! Please post the judgment you referred here so that I may re-think over my reply.
