What is the time of starting the time of of offence u/s 138
Madhu Mittal
(Querist) 20 July 2021
This query is : Resolved
What is the time of starting the time of of offence u/s 138 means:
"Offence under section 138 NI is completed when in spite of notice of dishonour accused fails to make payment within period of 15 days" What is the time of starting of offence u/s 138 means:
1a) whether the time when loan is taken or 1 b) when the cheque is issued/handed over or 1 c).when the cheque is presented in the bank or 1 d). When the cheque is dishonored or 1 e) when the 15 days completes after giving/receiving notice of dishonor of cheque.
Or 1 f) when any act of above five is done ,
Dr J C Vashista
(Expert) 21 July 2021
It's 1 e) above; i.e., 15 days after receipt of demand notice.
Advocate Bhartesh goyal
(Expert) 21 July 2021
Yes, cause of action arises to complainant to file complaint when 15 days expires after receiving of notice u/sec 138 ( b ) of N.I.Act to accused.i.e 1(e ).
Madhu Mittal
(Querist) 23 July 2021
With Due respect to both of you,
1.Houn’ble Supreme court’s three judge bench decided S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla and Anr. (20.09.2005 - SC) like below:
3….By a deeming provision contained in Section 141 of the Act, such a person is vicariously liable to be held guilty for the offence under Section 138 and punished accordingly. Section 138 is the charging section creating criminal liability in case of dishonour of a cheque and its main ingredients are :
(i) Issuance of a cheque.
(ii) Presentation of the cheque
(iii) Dishonour of the cheque
(iv) Service of statutory notice on the person sought to be made liable, and
(v) Non-compliance or non-payment in pursuance of the notice within 15 days of the receipt of the notice.
2.Hon’ble Delhi Hi gh Court held in a case named Satyapal_Talwar_vs_State_Govt_Of_Nct_Of_Delhi_Ors_on_29_March_2011
As below:
18. On reading of the above proviso to Section 138 N.I. Act, it is apparent that the prosecution for an
offence under Section 138 N.I. Act cannot be initiated by the payee or holder in due course of the
cheque unless after the dishonour of the cheque, he servers the drawer of the cheque with a notice of
demand of the cheque amount within 30 days of the receipt of information regarding dishonour of
the cheque and the drawer of the cheque fails to make arrangement for payment of the cheque
amount within 15 days of the receipt of demand notice. From this, it is obvious that to constitute a
triable offence under Section 138 N.I. Act, following five ingredients must exist:
"(a) drawing of the cheque, (b) presentation of the cheque to the bank, (c) returning
the cheque unpaid by the drawee bank, (d) giving notice in writing to the drawer of
the cheque demanding payment of the cheque amount (e) failure of the drawer to
make payment within 15 days of the receipt of the notice."
19. In my considered view, anyone who was incharge of the business of the company or management
of day to day affairs of the business at the time of commission of an act constituting any of the five
ingredients of the offence under Section 138 N.I. Act, shall be liable to prosecution and punishment
under Section 138 N.I. Act unless he falls within the purview of the proviso to Section 141 N.I. Act,
which reads thus:
"Provided that nothing contained in this sub-section shall render any person liable to
punishment if he proves that the offence was committed without his knowledge, or
that he had exercised all due diligence to prevent the commission of such offence."
3 The Hn’ble Supre me Court of India in a case named Anil Kumar Sawhney vs. Gulshan Rai dated 11.10.1993 at para 14…
14… The postdated cheque becomes a cheque under the Act on the date which is written on the said cheque and the six months period has to be reckoned for the purposes of Section 138(a) from the said date.
4. Houn’ble Supreme court decided in a case named Dcm_Financial_Services_Ltd_vs_J.N.Sareen_&_Anr_on_13_May,_2008 in this case a Director has been acquitted in a post dated cheque case along with other reasons and at para 22 it was held:
22. When post dated cheques are issued and the same are accepted, although it may be presumed
that the money will be made available in the bank when the same is presented for encashment, but
for that purpose, the harsh provision of constructive liability may not be available except when an
appropriate case in that behalf is made out.
Now You are requested to Please guide me whether at the time of issue (suppose 01.01.2019 )of a post dated cheque ( suppose 01.01.2021) on the basis of which loan is given ( on 01.01.2019), taking of loan with the consent of a non signatory of cheque but active Partner(not Director) Mrs. X who resigned on 01.01.2020, will be come under the preview of Section 138 N I ACT, if the cheque was returned unpaid on 01.01.2021?
Thanks with Regards,
