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Raj Kumar Makkad (Adv P & H High Court Chandigarh)     27 April 2010

Law of Cheque Bounce

 Negotiable Instruments Act, 1881, S.138 - Company - Complaint against company and its Directors - Directors signing the cheque - They cannot escape their liability on the ground that they resigned after signing the cheque but before the cheques were deposited in the bank. (M/s.Sumida International Pvt. Ltd. & Ors. Vs M/s.Rama Vision Limited) 2007(4) Criminal Court Cases 494 (Delhi)

          Negotiable Instruments Act, 1881, S.138 - Company - Dishonour of cheque - Company Secretary filing complaint on behalf of company - Specific authorisation for filing each case is not required when there is general authorisation to an officer of the Board of Directors. (M/s.Sumida International Pvt. Ltd. & Ors. Vs M/s.Rama Vision Limited) 2007(4) Criminal Court Cases 494 (Delhi)

          Negotiable Instruments Act, 1881, S.138 - Company - Dishonour of cheque - Complaint by power of attorney holder - Even if initially there was no authority, still the Company can, at any stage, rectify that defect - At a subsequent stage, the company can send a person who is competent to represent the company. (M/s Voltas Ltd. Vs M/s Vidharbha Vehicles Pvt. Ltd.) 2007(4) Civil Court Cases 519 (A.P.) : 2007(4) Criminal Court Cases 689 (A.P.)

          Negotiable Instruments Act, 1881, S.138 - Company - Dishonour of cheque - Complaint by power of attorney holder - Particular person, whose statement was taken on oath, at the first instance is not required to represent the company till the end of the proceedings - There can be occasions when different person can represent the company - It is open to the company to seek permission of the Court for sending any other person to represent the company in the Court. (M/s Voltas Ltd. Vs M/s Vidharbha Vehicles Pvt. Ltd.) 2007(4) Civil Court Cases 519 (A.P.) : 2007(4) Criminal Court Cases 689 (A.P.)

          Negotiable Instruments Act, 1881, S.138 - Dishonor of cheque - Company - Director resigned prior to issuance of cheque - No counter credential projected by complainant - Petitioner cannot be fastened with criminal liability under S.138 of the N.I. Act. (Lachhman P.Udhani & Ors. Vs M/s.Redington (India) Ltd.) 2007(1) Criminal Court Cases 956 (Madras) : 2007(2) Civil Court Cases 135 (Madras)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - - Cheque drawn for discharge of time-barred liability - Dishonour of cheque will fall within the sweep of S.138 of the Act. (Ramakrishnan Vs Gangadharan Nair & Anr.) 2007(3) Civil Court Cases 713 (Kerala) : 2007(3) Criminal Court Cases 459 (Kerala)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Account closed - Complaint is maintainable. (A.K.Chaudhary & Ors. Vs Nandita Malhotra) 2007(4) Criminal Court Cases 593 (Delhi)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Accused transacting business on behalf of company on commission basis - Accused purchasing potatoes from complainant on behalf of company - Accused issued cheque in discharge of debt of company - Held, accused is validly prosecution - Conviction upheld. (J.Ramaraj Vs IIiyaz Khan) 2007(2) Civil Court Cases 458 (Karnataka) : 2007(2) Criminal Court Cases 726 (Karnataka)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Advancing loan of a huge amount of Rs.3.16 lakhs - Complainant himself used to borrow money from his brothers, father and others - Complainant failed to show that he had any financial capacity to advance such a huge amount - Accused acquitted. (K.Prakashan Vs P.K.Surenderan) 2007(3) Apex Court Judgments 429 (S.C.) : 2007(4) Civil Court Cases 713 (S.C.) : 2007(4) Criminal Court Cases 371 (S.C.)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Bank endorsement "Account expires" - Amounts to dishonour of cheque - Provision of S.138 of the Act is attracted. (M/s Voltas Ltd. Vs M/s Vidharbha Vehicles Pvt. Ltd.) 2007(4) Civil Court Cases 519 (A.P.) : 2007(4) Criminal Court Cases 689 (A.P.)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Blank cheque - Cheque issued as security for transaction between the parties - When blank cheque is issued by one to another, it gives an authority to the person, to whom it is issued, to fill it up at the appropriate stage with the necessary entries regarding the liability and to present it to Bank - On dishonour of cheque accused is not absolved of the liability. (Moideen Vs Johny) 2007(1) Civil Court Cases 220 (Kerala)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Blank cheque - Cheque issued for cost of goods to be supplied by drawee - Bank account closed after issuance of cheque - Cheque presented to bank for realisation and same dishonoured - No criminal liability for the reasons that (i) cheque when issued was blank; (ii) Cheque when presented for payment, was time barred as it was presented for payment after expiry of six months reckoned from date on which it was issued in blank; (iii) cheque when issued was not towards any existing debt or liability - Order of trial Court acquitting accused calls for no interference. (Vishnudas Vs Vijaya Mahantesh) 2007(2) Criminal Court Cases 865 (Karnataka) : 2007(3) Civil Court Cases 276 (Karnataka)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Blank cheque theory - Cheque signed by drawer - Cheque filled up by some other person putting the date and amount - Drawer cannot get absolved of the liability u/s 138 of the Act. (T.N.Unnikrishnan Vs T.K.Ramankutty & Anr.) 2007(2) Civil Court Cases 655 (Kerala) : 2007(2) Criminal Court Cases 897 (Kerala)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Cause of action - Defective notice - Name of bank incorrectly mentioned - It is a defective notice - Cheque again presented and again dishonoured - Prosecution launched on the basis of dishonour of cheque for the second time - Held, cause of action begins to run not on the issuance of a defective notice but it started to run on issuance of notice on dishonour of cheque for the second time. (Aniyan Thomas Chacko Vs The Varvelil Bankers & Anr.) 2007(1) Civil Court Cases 262 (Kerala) : 2007(1) Criminal Court Cases 236 (Kerala)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Change in date - It is for the complainant to prove that change in the date was made with the consent of accused. (Fragrant Leasing & Finance Company Ltd. Vs Jagdish Katuria & Anr.) 2007(3) Criminal Court Cases 840 (Allahabad) : 2007(4) Civil Court Cases 281 (Allahabad)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Change of date without authorisation - Material alteration - Accused in his statement u/s 313 Cr.P.C. merely stated that he gave the cheques but it no where speaks about the change in dates - Held, complainant cannot get any benefit of statement of accused u/s 313 Cr.P.C. (Fragrant Leasing & Finance Company Ltd. Vs Jagdish Katuria & Anr.) 2007(3) Criminal Court Cases 840 (Allahabad) : 2007(4) Civil Court Cases 281 (Allahabad)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Cheque issued as security for repayment of debt - It is a negotiable instrument - Dishonour of cheque - Drawer of cheque incurs liability of prosecution under S.138 of the Act. (S.T.P. Limited, Bangalore Vs Usha Paints & Decorators, Bangalore & Anr.) 2007(1) Civil Court Cases 335 (Karnataka) : 2007(1) Criminal Court Cases 614 (Karnataka)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Cheque issued as security for repayment of loan - Cheque continues to be one issued for the discharge of liability as contemplated u/s 138 of the Act. (K.P.Rathikumar Vs N.K.Santhamma & Anr.) 2007(4) Civil Court Cases 546 (Kerala) : 2007(4) Criminal Court Cases 343 (Kerala)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Cheque issued as security for repayment of loan - Cheque will continue to be one issued for discharge of liability as contemplated under S.138 of the Act. (Rathikumar Vs Santhamma) 2007(1) Civil Court Cases 024 (Kerala)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Cheque issued for discharge of a time barred debt - Held, such a cheque is within the sweep of S.138 Negotiable Instruments Act. (P.N.Gopinathan Vs Sivadasan & Anr.) 2007(1) Civil Court Cases 729 (Kerala) : 2007(1) Criminal Court Cases 1077 (Kerala)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Cheque issued in respect of uncertain future liabilities - Dishonour of such cheque does not attract prosecution u/s 138 of the Act. (M/s Sathavahana Ispat Ltd. Vs Umesh Sharma) 2007(2) Civil Court Cases 499 (Karnataka) : 2007(2) Criminal Court Cases 333 (Karnataka)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Cheque issued to discharge promissory note - Material alterations in promissory note and request for sending pronote for expert examination - Plea taken for the first time at appellate stage - Not permissible. (S.P.Muthu Vs Kirupakaran) 2007(4) Civil Court Cases 382 (Madras) : 2007(4) Criminal Court Cases 635 (Madras)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Cheque issued towards repayment of loan - Money lender - Not possible to lend money without any document - Date of lending money not mentioned in complaint and notice - Ledger extract or any letter sanctioning loan amount or pronote to show sanction of loan not produced - Presumption u/s 139 is not available - Defence version is probabilised that cheque was issued by way of security for loan given by complainant to his brother and his brother is already convicted and present proceedings instituted by him to realise amount once again from surety is not maintainable - Accused acquitted. (M.Senguttuvan Vs Mahadevaswamy) 2007(3) Civil Court Cases 687 (Karnataka) : 2007(3) Criminal Court Cases 337 (Karnataka)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Cheque issued towards time barred debt - Accused cannot be convicted u/s 138 of the Act. (Zaheeda Kazi Vs Mrs.Sharina Ashraff Khan) 2007(3) Civil Court Cases 163 (Bombay) : 2007(3) Criminal Court Cases 069 (Bombay) : 2007(4) Criminal Court Cases 733 (Bombay)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Cheque not issued for a debt or liability - Burden of proof is on the accused. (Shanaz D'Souza Vs Sheikh Ameer Saheeb & Anr.) 2007(2) Criminal Court Cases 1029 (Bombay) : 2007(3) Civil Court Cases 131 (Bombay)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Cheque not presented in Bank for encashment within six months from the date on which it was drawn - No offence u/s 138 of the Act is made out. (Geeta Vs State of U.P. & Anr.) 2007(3) Civil Court Cases 810 (Allahabad) : 2007(3) Criminal Court Cases 540 (Allahabad)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Cheque returned with bank endorsement 'present again' - Despite notice payment not made - Held, reasons for dishonour of cheque are wholly irrelevant - If despite notice amount remains unpaid then drawer of cheque is responsible u/s 138 of the Act. (Yogendra Kumar Gupta Vs Ram Prakash Agrawal) 2007(3) Criminal Court Cases 272 (M.P.)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Closure of account - Account was closed even on date of issue of cheque - Account was closed not by accused but by Bank in accordance with rules governing current account - Held, accused is not liable when he had no notice of closure of account. (Nagaraja Upadhya Vs M.Sanjeevan) 2007(4) Civil Court Cases 387 (Karnataka) : 2007(4) Criminal Court Cases 167 (Karnataka)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Company - An employee filed complaint on behalf of company - Letter authorising employee to file complaint not filed - Though this is a curable defect but same not removed even during trial - Held, complaint not maintainable for want of authority letter. (Fragrant Leasing & Finance Company Ltd. Vs Jagdish Katuria & Anr.) 2007(3) Criminal Court Cases 840 (Allahabad) : 2007(4) Civil Court Cases 281 (Allahabad)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Company - Chairman or Director - Pleading - There must be an averment that the person who is vicariously liable for commission of the offence of the Company both was incharge of and was responsible for the conduct of the business of the Company - Such requirement must be read conjointly and not disjunctively. (Everest Advertising Pvt.Ltd. Vs State, Govt. of NCT of Delhi & Ors.) 2007(2) Apex Court Judgments 191 (S.C.) : 2007(2) Civil Court Cases 708 (S.C.) : 2007(2) Criminal Court Cases 791 (S.C.)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Company - Complaint by Director of Company on behalf of company - Documentary evidence not filed to show that he is Director of Company and has been authorised by the Company to file and depose on behalf of the company - Dismissal of complaint - Held, justified. (Director, Maruti Feeds & Farms Private Limited, Dharwad Vs Basanna Pattekar) 2007(4) Civil Court Cases 385 (Karnataka) : 2007(4) Criminal Court Cases 012 (Karnataka)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Company - Complaint filed through power of attorney holder - Authority letter or power of attorney whereby attorney was authorised to file complaint on behalf of company not filed - Complaint, held, rightly dismissed. (Lakshmi Srinivas Savings & Chit Funds Syndicate Pvt. Ltd. Vs S.Bhojarajan) 2007(2) Civil Court Cases 803 (Madras) : 2007(2) Criminal Court Cases 562 (Madras)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Company - Director - Tendered his resignation prior to issuance of cheque - Not liable for the offence committed by company - Order of issuance of process against Director quashed and set aside. (Amit Mohan Inder Mohan Sharma Vs M/s.Mamta Agency & Ors.) 2007(2) Criminal Court Cases 805 (Bombay) : 2007(3) Civil Court Cases 089 (Bombay)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Company - Director - Vicarious liability - Director who negotiated for obtaining financial assistance on behalf of the Company cannot be held vicariously liable - It does not give rise to an inference that he was responsible for day-to-day affairs of the company - Vicarious liability on the part of a person must be pleaded and proved - It cannot be a subject matter of mere inference. (K.Srikanth Singh Vs M/s North East Securities Ltd. & Ors.) 2007(3) Apex Court Judgments 024 (S.C.) : 2007(3) Civil Court Cases 525 (S.C.) : 2007(3) Criminal Court Cases 850 (S.C.)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Company - Director - Vicarious liability - It must be pleaded that accused was responsible to the Company for the conduct of the business of the Company. (K.Srikanth Singh Vs M/s North East Securities Ltd. & Ors.) 2007(3) Apex Court Judgments 024 (S.C.) : 2007(3) Civil Court Cases 525 (S.C.) : 2007(3) Criminal Court Cases 850 (S.C.)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Company - Director - Vicarious liability - Must be pleaded and proved - It cannot be a subject matter of mere inference. (K.Srikanth Singh Vs M/s North East Securities Ltd. & Ors.) 2007(3) Apex Court Judgments 024 (S.C.) : 2007(3) Civil Court Cases 525 (S.C.) : 2007(3) Criminal Court Cases 850 (S.C.)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Company - Directors - Pleading - As a result of fall out of non payment negotiations were held between parties wherein Respondent Nos.2 and 3 took part - Held, there is no doubt that ingredients of S.141 of the Act stand satisfied. (Everest Advertising Pvt.Ltd. Vs State, Govt. of NCT of Delhi & Ors.) 2007(2) Apex Court Judgments 191 (S.C.) : 2007(2) Civil Court Cases 708 (S.C.) : 2007(2) Criminal Court Cases 791 (S.C.)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Company - Manager filed complaint - Manager not duly authorized by Board of Directors to sign and file the complaint - Not a ground for quashing the complaint. (Bhasin Credit Aid Ltd. Vs Raj Kumar) 2007(2) Civil Court Cases 607 (Delhi) : 2007(2) Criminal Court Cases 502 (Delhi)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Company - Prosecution of Chairman and Director of Company - Concurrent finding of Trial Court and First Appellate Court that accused were in charge of and were responsible to company for conduct of its business - Such finding needs no interference in revision. (S.Parameshwarappa & Anr. Vs S.Choodappa) 2007(2) Civil Court Cases 763 (Karnataka) : 2007(2) Criminal Court Cases 592 (Karnataka)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Company - Winding up orders of company passed and official liquidator appointed - Complaint against Directors of Company in respect of cheques presented and dishonoured after winding up orders are passed is not maintainable. (Ratan Lal Garera & Ors. Vs State (NCT of Delhi) & Anr.) 2007(2) Civil Court Cases 318 (Delhi) : 2007(2) Criminal Court Cases 277 (Delhi)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Compensation - By imposing the sentence of imprisonment alone complainant cannot recover the money from accused - Accused directed to pay compensation equal to that of cheque amount. (Selvaraj Vs N.Jeyaraman) 2007(1) Civil Court Cases 646 (Madras) : 2007(1) Criminal Court Cases 869 (Madras)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Complainant is at liberty to file a suit for recovery of the amount as well as a complaint for bouncing of the cheques. (Smt.Mymoona Vs H.M.Trading Company, Mangalore & Anr.) 2007(4) Civil Court Cases 688 .(Karnataka) : 2007(4) Criminal Court Cases 910 (Karnataka)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Complaint - Delay - Application for condonation of delay not filed alongwith complaint - It is a curable defect - Complainant directed to file affidavit setting out reasons for delay in filing complaint and trial Court directed to provide opportunity to accused to raise their defence - If Court is satisfied that there are adequate and cogent reasons to condone delay, then same to be decided on merits. (R.Kanthimathi & Ors. Vs Bank of India ) 2007(4) Civil Court Cases 330 (Madras) : 2007(4) Criminal Court Cases 403 (Madras)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Complaint - Dismissed in default for single instance of non appearance of complainant - Complaint ordered to be restored to be decided on merits. (Print Links (India) & Anr. Vs M/s.Kiran Paper Convertors & Merchants & Ors.) 2007(4) Civil Court Cases 711 (P&H) : 2007(4) Criminal Court Cases 695 (P&H)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Complaint - During pendency of complaint Court allowed the son of complainant, his general power of attorney holder, to continue the proceedings - No ground to quash the proceedings. (Bodapati Naga Krishna Gandhi Vs Sri Ilapakurthi Sri Ramulu & Anr.) 2007(4) Civil Court Cases 147 (A.P.) : 2007(4) Criminal Court Cases 271 (A.P.)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Complaint - Filed within two days of refusal to receive notice - Complaint is premature. (M/s. Sarav Investment & Financial Consultants Pvt. Ltd. & Anr. Vs Llyods Register of Shipping Indian Office Staff Provident Fund & Anr. ) 2007(4) Criminal Court Cases 527 (S.C.)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Complaint - Forms part of the record and it need not be marked and non marking is not fatal to the complainant's case. (Jayamma Vs Lingamma) 2007(3) Civil Court Cases 466 (Karnataka) : 2007(3) Criminal Court Cases 287 (Karnataka)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Complaint - Quashing of - Non supply of goods for which cheque was issued - Not a ground to quash complaint - It is a matter of fact which has to be proved before a Court of law. (M/s.Shirdi Overseas Imports & Exports & Anr. Vs M/s.Serve Overseas & Anr.) 2007(2) Civil Court Cases 638 (P&H) : 2007(2) Criminal Court Cases 1057 (P&H)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Complaint by power of attorney holder - Failure to produce power of attorney authorising to lodge complaint and to give sworn statement on behalf of his principal - Dismissal of complaint for want of proof of power of attorney justified. (Ranjitha Balasubramanian & Anr. Vs Shanthi Group, Bangalore & Ors.) 2007(2) Civil Court Cases 362 (Karnataka) : 2007(2) Criminal Court Cases 475 (Karnataka)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Complaint by power of attorney holder - If transactions are witnessed by power of attorney or he has full knowledge of the transactions, his statement can be recorded by Magistrate for verification of the complaint. (Shanaz D'Souza Vs Sheikh Ameer Saheeb & Anr.) 2007(2) Criminal Court Cases 1029 (Bombay) : 2007(3) Civil Court Cases 131 (Bombay)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Complaint filed - Regarding same very cheques FIR lodged u/ss 420, 406 IPC - FIR quashed. (Indian Penal Code, 1860, Ss.420, 406). (Harinderpal Singh Vs State of Punjab) 2007(4) Civil Court Cases 637 (P&H) : 2007(4) Criminal Court Cases 976 (P&H)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Complaint filed by husband on behalf of wife on the basis of authority letter - Husband neither a general nor special power of attorney holder - In the authority letter it was no where undertaken that the executant would be bound by the acts done and conducted on her behalf in respect of the cheque - Held, complainant not competent to institute the complaint - Complaint quashed. (O.P.Mehra Vs Raj Kumari Bhalla & Anr.) 2007(1) Criminal Court Cases 847 (P&H) : 2007(2) Civil Court Cases 181 (P&H)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Complaint through power of attorney holder - Power of attorney - If not filed at initial stage can be filed even at a later stage when validity of the same is questioned and Court then has to decide the genuineness or the validity of the same. (K.Gopalakrishnan Vs Karunakarann rep.by the Power of Attorney Holder) 2007(2) Civil Court Cases 559 (Madras) (DB) : 2007(2) Criminal Court Cases 683 (Madras) (DB)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Complaint under section 138 of the Act - Cheque alleged to be forged before filing complaint - Accused lodged complaint under sections 464, 468, 389, 420 r/w section 511 IPC - Bar under S.195(1)(b)(ii) is not applicable - In the interest of justice both matters ordered to be heard and disposed by same Court together and at the same time. (Ramanand Vs Kailasnath & Anr.) 2007(1) Civil Court Cases 658 (Bombay) : 2007(1) Criminal Court Cases 509 (Bombay)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Consideration - Drawer of cheque regular customer and purchasing goods on credit - Drawer admitting balance amount shown as due in running account, as true and correct - Dismissal of complaint on ground of non production of invoices relating to sales of goods held, not proper - Accused liable to conviction. (Ganesh Enterprises, Bangalore Vs D.R.Sarala) 2007(2) Civil Court Cases 779 (Karnataka) : 2007(2) Criminal Court Cases 524 (Karnataka)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Conviction - Default sentence - Accused to undergo two months SI on failure to pay compensation amount within two months - Such default sentence shall lapse at any time when the payment is made either before or after the default sentence starts running. (K.G.Girish Kumar Vs M/s Muthoot Capital Service Pvt.Ltd. & Anr.) 2007(2) Civil Court Cases 385 (Kerala) : 2007(2) Criminal Court Cases 704 (Kerala)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Conviction - Plea that there was no legal liability on the part of accused to make payment towards goods delivered because of exaggerated bills - Plea not taken as a part of defence through cross examination - In reply to notice no such plea raised - Conviction not liable to be interfered with. (S.N.Dabholkar Vs Duroplus India Pvt.Ltd. & Anr.) 2007(3) Criminal Court Cases 542 (Calcutta)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Conviction - Sentence of simple imprisonment and fine - Appeal against - Appeal/Revision cannot be dismissed for non deposit of amount of fine. (Vijay D.Salvi Vs State of Maharashtra & Ors.) 2007(3) Apex Court Judgments 248 (S.C.) : 2007(4) Civil Court Cases 164 (S.C.) : 2007(4) Criminal Court Cases 298 (S.C.)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Court to carry out proper verification before issuing process - Verifications required are : (1) Verification of a complaint on oath which should be in a proper manner i.e. all the facts necessary to constitute the offence must be borne out from the verification; (2) If Company then person representing the Company should be duly authorised; (3) Complete postal addresses of complainant and accused; (4) Statement of the complainant that all the accused persons named in the complaint are Directors/Partners and that they are liable under the Act and to verify the status of accused and the extent of involvement in the commission of offence; (5) That the accused is the signatory to the instrument in question; (6) Fact of issuance of statutory notice and Court should insist for some formal proof in the form of acknowledgement receipt etc.; (7) Whether the concerned Firm/Company, Society/Institution, Partner/Director or Proprietor are joined as parties or not; (8) Whether the complaint has been filed within the period of limitation as prescribed under S.138 of the Act; (9) Whether there are any specific allegations against each accused or not. (Dr.Rajan Sanatkumar Joshi Vs Rajnikant Govindlal Shah & Anr.) 2007(3) Criminal Court Cases 577 (Gujarat)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Delay of 3 days in filing complaint- Condonation - Delay can be condoned only on issuance of notice to accused. (Sajjan Kumar Jhunjhunwala & Ors. Vs M/s.Eastern Roadways Pvt.Ltd.) 2007(2) Civil Court Cases 812 (Karnataka)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Director - Resigned before issuance of cheque in question - No averment in complaint as to how and in what manner petitioner was responsible for conduct of business of company or otherwise responsible to it in regard to its functioning - Complaint against petitioner quashed. (Dr.Rajan Sanatkumar Joshi Vs Rajnikant Govindlal Shah & Anr.) 2007(3) Criminal Court Cases 577 (Gujarat)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Discharge of liability - Cheque issued for settlement of trade liabilities - Forms valid consideration - Dishonour of cheque justifies penal action u/s 138 of the Act. (Sree Sakthi Paper Mills Ltd. Vs Anjaneya Enterprises) 2007(4) Criminal Court Cases 660 (Kerala)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Endorsement on cheque 'sans recourse' - Contention that cheque itself speaks that payee will not have recourse to file the complaint, taking cognizance is barred - Held, when once cheque is dishonoured, the endorsement on the cheque made by accused without knowledge of the complainant and in absence of mentioning the said fact in reply notice given by accused, the prosecution cannot be quashed exonerating the accused from the liability u/s 138 of the Act. (Maganti Ganta Avadhani Vs Kopuri Sreenivasa Rao) 2007(4) Civil Court Cases 034 (A.P.) : 2007(4) Criminal Court Cases 294 (A.P.)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Extension of date of cheque - When a drawer revalidates cheque from time to time, which is permissible, then on each occasion there is a fresh promise as envisaged by S.25 of Contract Act as well as an acknowledgment within the meaning of S.18 of Limitation Act if such revalidation is made within the period of limitation - Held, liability is legally enforceable liability. (Vijay Ganesh Gondhlekar Vs Indranil Jairaj Damale) 2007(4) Civil Court Cases 647 (Bombay) : 2007(4) Criminal Court Cases 957 (Bombay)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Fine/or compensation - Power of court to impose fine may or may not be limited but power to award compensation is not - Consideration for payment of compensation is somewhat different from payment of fine. (P.Suresh Kumar Vs R.Shankar) 2007(2) Apex Court Judgments 140 (S.C.) : 2007(2) Civil Court Cases 84 (S.C.) : 2007(2) Criminal Court Cases 082 (S.C.)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Firm - Cheque issued in name of firm but complaint filed by a firm different from the one in whose name cheque was issued - Notice issued by firm which was different from the one in whose name cheque was issued - Notice issued in itself defective - Entire proceedings vitiated on this ground alone. (Lakshmi Srinivas Savings & Chit Funds Syndicate Pvt. Ltd. Vs S.Bhojarajan) 2007(2) Civil Court Cases 803 (Madras) : 2007(2) Criminal Court Cases 562 (Madras)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - For invoking criminal liability under S.138 of the Act, cheque is required to be presented to the drawee bank or the payee bank within the period of six months from the date of its issue. (Shrikant Chavan Vs Hotel the Vaishno Devi) 2007(2) Civil Court Cases 368 (J&K) : 2007(2) Criminal Court Cases 009 (J&K)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Holder in due course - Partnership business dissolved - Cheque of Rs.40,000/- entrusted to brother of complainant - Agreement reduced to writing - Cheque drawn and handed over to brother of complainant could not have been made use of by the complainant, unless the complainant has a case that accused did not honour the agreement and that consequent on that his brother had handed over the cheque and thus he became a holder in due course - Transaction relating to cheque not as alleged in complaint - No offence is made out u/s 138 of the Act - No reason to interfere in the order of acquittal. (Madamuttathil Abdul Razak Vs M.Yousaf) 2007(2) Civil Court Cases 759 (Kerala) : 2007(2) Criminal Court Cases 1025 (Kerala)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Ingredients of offence u/s 138 of the Act are : (i) a cheque was issued; (ii) the same was presented; (iii) but, it was dishonoured; (iv) a notice in terms of the said provision was served on the person sought to be made liable; and (v) despite service of notice, neither any payment was made nor other obligations, if any, were complied with within fifteen days from the date of receipt of the notice. (S.M.S.Pharmaceutical Ltd. Vs Neeta Bhalla & Anr.) 2007(1) Apex Court Judgments 668 (S.C.) : 2007(2) Civil Court Cases 127 (S.C.) : 2007(2) Criminal Court Cases 026 (S.C.)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Issued as security - Even if cheque is issued as a security for payment, it is negotiable instrument and encashable security at the hands of payee - Not a ground to exonerate the penal liability u/s 138 of N.I. Act. (Umaswamy Vs K.N.Ramanath) 2007(1) Criminal Court Cases 106 (Karnataka) : 2007(2) Civil Court Cases 096 (Karnataka)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Jurisdiction - Court at the place of office of Advocate who issued statutory notice has no territorial jurisdiction - Complaint ordered to be returned for its presentation before the proper Court. (Harihara Puthra Sharma Vs State of Kerala & Anr.) 2007(2) Civil Court Cases 168 (Kerala) : 2007(2) Criminal Court Cases 012 (Kerala)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Jurisdiction - Court at the place where money was intended to be paid has jurisdiction - Court at place where cheque was presented for realisation has no jurisdiction to try the offence. (Ahuja Nandkishore Dongre Vs State of Maharashtra) 2007(2) Civil Court Cases 618 (Bombay) : 2007(2) Criminal Court Cases 771 (Bombay)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Law does not mandate proof of original transaction or existence of original consideration - In a prosecution under S.138 of the Act, Criminal Court is not to adjudicate on the liability to discharge with the cheque is alleged to be issued. (Johnson Scaria Vs State of Kerala) 2007(1) Civil Court Cases 196 (Kerala) : 2007(1) Criminal Court Cases 161 (Kerala)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Legally enforceable debt - Rebuttal of presumption - Ink of signature different from the ink of other writings of cheque - Entire cheque amount found not due in view of admission of receipt of certain amount - No legally enforceable debt - Acquittal, held, proper. (V.Rama Shetty Vs N.Sasidaran Nayar) 2007(1) Civil Court Cases 815 (Karnataka) : 2007(1) Criminal Court Cases 536 (Karnataka) : 2007(2) Civil Court Cases 231 (Karnataka)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Legally enforceable debt or liability - Cheque issued in discharge of liability arising out of an agreement void ab initio - Provision of S.138 of the Act is not attracted. (Virender Singh Vs Laxmi Narain & Anr.) 2007(2) Civil Court Cases 750 (Delhi) : 2007(2) Criminal Court Cases 430 (Delhi)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Limitation - Notice issued but received back with endorsement 'no such addressee' - Cheque presented against and dishonoured again - Notice issued again - Cause of action arises only on receipt of second notice - Limitation starts to run from receipt of second notice. (T.N.Unnikrishnan Vs T.K.Ramankutty & Anr.) 2007(2) Civil Court Cases 655 (Kerala) : 2007(2) Criminal Court Cases 897 (Kerala)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Loan - No instrument executed though a huge loan was advanced - Even no interest thereon charged - Earlier accused did not pay instalments in respect of the prized amount of chitties - Loan advanced inspite of the fact that three civil suits for recovery of money against accused were pending - Complainant not approaching Court with clean hands and his conduct not that of a prudent man - Held, accused has discharged his burden to rebut the presumption available u/s 139 of the Act - Order of acquittal, upheld. (John K.John Vs Tom Varghese & Anr.) 2007(3) Apex Court Judgments 655 (S.C.) : 2007(4) Civil Court Cases 690 (S.C.) : 2007(4) Criminal Court Cases 974 (S.C.)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Material alteration - Account number changed without consent of drawer as drawer of cheque had closed the account of which the cheque was issued - Amounts to material alteration - Instrument void in law - No action lies u/s 138 of the Act. (B.Krishna Reddy Vs B.K.Somashekara Reddy) 2007(1) Civil Court Cases 526 (Karnataka) : 2007(1) Criminal Court Cases 440 (Karnataka)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Misutilisation of blank signed cheque - Sending cheque to handwriting expert - Admission of signature in cheque is not equivalent or synonymous with admission of execution - Magistrate directed to forward the cheque to expert for comparison if accused wants the admitted handwritings/specimen writings to be compared with the disputed writings in the cheque. (Bindu Vs Sreekantan Nair) 2007(2) Civil Court Cases 517 (Kerala) : 2007(2) Criminal Court Cases 626 (Kerala)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Money lending business - Question as to complainant having no money lending licence is not relevant in a complaint filed u/s 138 NI Act which is more in quasi civil and criminal in nature. (S.Parameshwarappa & Anr. Vs S.Choodappa) 2007(2) Civil Court Cases 763 (Karnataka) : 2007(2) Criminal Court Cases 592 (Karnataka)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Non appearance of accused due to illness - Process not issued - Single default not sufficient to dismiss the complaint in default when cause shown by complainant for absence is not disbelieved. (Manjit Kaur Vs State of Punjab & Anr.) 2007(1) Civil Court Cases 260 (P&H)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Notice - An omnibus notice without specifying as to what was the amount due under the dishonoured cheque does not subserve the requirement of law. (M/s.Rahul Builders Vs M/s.Arihant Fertilizers & Chemical & Anr.) 2007(3) Apex Court Judgments 554 (S.C.) : 2007(4) Criminal Court Cases 990 (S.C.)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Notice - Can be served either through Registered Post or through UPC - Notice if dispatched through UPC with correct address of the drawer written on it, presumption of service of notice arises unless the drawer proves that it was not received by him in fact and that he was not responsible for such non service. (V.K.Jain Vs Sharad Jagtiani) 2007(1) Civil Court Cases 781 (Delhi) : 2007(1) Criminal Court Cases 887 (Delhi)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Notice - Cheque issued for part payment of outstanding bills - Cheque dishonoured - By issuing notice demand made of payment of pending bills and not cheque amount - Held, notice is not valid. (M/s.Rahul Builders Vs M/s.Arihant Fertilizers & Chemical & Anr.) 2007(3) Apex Court Judgments 554 (S.C.) : 2007(4) Criminal Court Cases 990 (S.C.)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Notice - Demand of loan amount and not demand for payment of cheque amount and further demand of damages on account of mental torture - Demand not in accordance with requirement of the provision of S.138 of the Act - Complaint founded on this demand notice is not maintainable. (Kapil Aggarwal Vs Raghu Vias) 2007(4) Civil Court Cases 106 (Delhi) : 2007(4) Criminal Court Cases 136 (Delhi)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Notice - Demand of payment not made in notice - Held, it is not a legal notice strictly in terms of S.138(b) of the Act. (Haryana State Small Industries Vs Laxmi Agro Industries) 2007(1) Civil Court Cases 274 (P&H) (DB) : 2007(1) Criminal Court Cases 269 (P&H) (DB)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Notice - Despatch of notice within 30 days is the requirement of law - Date of receipt of notice is not crucial or relevant. (Ravi Vs Kuttappan) 2007(3) Civil Court Cases 337 (Kerala) : 2007(3) Criminal Court Cases 071 (Kerala)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Notice - Not received by accused - Cheque presented again - Bank not accepting the cheque - Bank had no occasion either to honour or dishonour the cheque - No cause of action - Complaint dismissed. (Manibhadra Marketing Pvt. Ltd & Anr. Vs Chandrakant Manilal Kothari & Anr.) 2007(2) Civil Court Cases 142 (Bombay) : 2007(2) Criminal Court Cases 260 (Bombay)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Notice - Proof of - Carbon copy of notice not filed - Photostat copy of notice not admissible in evidence - Accused admitted having received notice and that he replied notice - Complaint cannot be held to be defective on ground of lack of proof of notice. (Fragrant Leasing & Finance Company Ltd. Vs Jagdish Katuria & Anr.) 2007(3) Criminal Court Cases 840 (Allahabad) : 2007(4) Civil Court Cases 281 (Allahabad)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Notice - Received back unserved as door locked for several days - It must be deemed that notice has been served - Order returning complaint set aside with a direction to take the complaint on file and proceed in accordance with law. (Pavulmanickam Vs M.S.Jeyachandran) 2007(1) Civil Court Cases 622 (Madras) : 2007(1) Criminal Court Cases 942 (Madras)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Notice - Received back unserved with endorsement "addressee long absent and return to sender" - Order taking cognizance not liable to be quashed - However, the allegation that accused refused to receive notice even after due information given by postal authorities are matters for trial. (Asif Akbani Vs P.K.Mani) 2007(4) Civil Court Cases 184 (Madras) : 2007(4) Criminal Court Cases 221 (Madras)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Notice - Refusal by addressee - Refusal to accept notice is deemed a proper service - Counting of 15 days starts from date of notice or the date on which notice was refused. (Dinesh Sahu Vs Dr.R.K.Jain & Anr.) 2007(3) Criminal Court Cases 899 (M.P.) : 2007(4) Civil Court Cases 478 (M.P.)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Notice - Refusal to receive - Complaint when found to be well within time then non mentioning of date of service or refusal of notice in complaint is not harmful to the complainant. (Dinesh Sahu Vs Dr.R.K.Jain & Anr.) 2007(3) Criminal Court Cases 899 (M.P.) : 2007(4) Civil Court Cases 478 (M.P.)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Notice - Sent through registered post at correct address - Notice received back 'unclaimed' - Held, notice is presumed to have been served. (Jayamma Vs Lingamma) 2007(3) Civil Court Cases 466 (Karnataka) : 2007(3) Criminal Court Cases 287 (Karnataka)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Notice - Service of notice - Where sender dispatched notice by post with correct address written on it, then presumption can be drawn that it is served on the addressee unless he proves that it was not really served and that he was not responsible for such non service. (Armstrong Builders & Developers Vs Vishvanath Naik) 2007(1) Civil Court Cases 707 (Bombay) : 2007(1) Criminal Court Cases 1099 (Bombay)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Notice - Undelivered letter or A.D. not received back - Allowance of period of service of notice which at least should be a week is admissible in this regard - Period to file complaint is thus extended to a further period of a week. (ICICI Bank Ltd. Vs Prafull Chandra) 2007(3) Civil Court Cases 532 (Delhi) : 2007(3) Criminal Court Cases 731 (Delhi)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Notice issued - Assurance given to present cheque again and that it will be honoured - Tendering of cheque for the second time will not frustrate the cause of action which arose on tendering the cheque for the second time. (Haryana State Small Industries Vs Laxmi Agro Industries) 2007(1) Civil Court Cases 274 (P&H) (DB) : 2007(1) Criminal Court Cases 269 (P&H) (DB)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Notice issued but no complaint filed - Cheque can be presented for the second time and complaint filed on fresh cause of action in case : (i) Envelope addressed to the complainant is lost or damaged or destroyed in transit; (ii) the letter does not reach the respondent for want of correct address; (iii) the envelope so received by the respondent is short of notice and it is blank; (iv) the letter so posted is not received by the actual addressee and the postage is stolen in transit; and (v) As assured and promised by the respondent, the cheque has been tendered for the second time. (Haryana State Small Industries Vs Laxmi Agro Industries) 2007(1) Civil Court Cases 274 (P&H) (DB) : 2007(1) Criminal Court Cases 269 (P&H) (DB)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Notice sent - Receipt of notice denied - On the other hand prayer made for dismissal of complaint on plea that complaint is barred by time in view of notice served by complainant - Held, these are inconsistent pleas and are self contradictory and an afterthought which is apparently carved out to resist the claim of complainant. (Haryana State Small Industries Vs Laxmi Agro Industries) 2007(1) Civil Court Cases 274 (P&H) (DB) : 2007(1) Criminal Court Cases 269 (P&H) (DB)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Offence when committed - It is not giving of notice which makes offence - It is the receipt of notice by drawer which gives cause of action - Cause of action is complete when drawer fails to make payment within 15 days of receipt of notice - Offence is deemed to have been committed only from the date when notice period expires - Normally cause does not arise until the commission of offence. (Haryana State Small Industries Vs Laxmi Agro Industries) 2007(1) Civil Court Cases 274 (P&H) (DB) : 2007(1) Criminal Court Cases 269 (P&H) (DB)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Only the drawer of cheque is liable - A payee or an endorser is not liable under S.138 of the Act. (P.N.Gopinathan Vs Sivadasan & Anr.) 2007(1) Civil Court Cases 729 (Kerala) : 2007(1) Criminal Court Cases 1077 (Kerala)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Partnership firm - Absence of averment in complaint that accused is incharge and responsible for the conduct of the business of the firm and as to how and in what manner he was so responsible - Complaint qua petitioner quashed. (Anil Kumar Vs State & Anr.) 2007(1) Civil Court Cases 739 (Delhi) : 2007(1) Criminal Court Cases 1038 (Delhi)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Partnership firm - Mis-descripttion of accused as proprietor whereas he was a partner - Complaint not to be rejected on this ground. (Anil Kumar Vs State & Anr.) 2007(1) Civil Court Cases 739 (Delhi) : 2007(1) Criminal Court Cases 1038 (Delhi)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Partnership firm - Partner - Specific averments in complaint revealing role played by them and that they looked after day to day affairs of the firm - Plea that petitioner was not a partner in firm or that he was not involved in day to day affairs of firm - Such fact to be established at trial - No ground to quash complaint. (Chhedi Lal Gupta Vs Shri Suresh Damani & Anr.) 2007(3) Criminal Court Cases 672 (Calcutta) : 2007(4) Civil Court Cases 274 (Calcutta)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Pendency of civil suit for recovery of cheque amount - Not a bar for proceeding u/s 138 of the Act - Provision of S.138 of the Act is an additional criminal remedy over and above the civil remedy available. (Sree Sakthi Paper Mills Ltd. Vs Anjaneya Enterprises) 2007(4) Criminal Court Cases 660 (Kerala)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Plea of accused that blank cheque as security was given and even after repayment of loan cheque was misused - Accused admitted in his cross examination that cheque was given to repay the debt - No merit in contention that blank cheque was given - No ground to interference in concurrent finding of conviction. (Sharad Kumar Tiwari Vs Smt.Laxmi Tiwari) 2007(4) Criminal Court Cases 808 (Rajasthan)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Power of attorney holder - Complaint signed by power of attorney holder in his own name and not on behalf of complainant - Complaint is maintainable and not bad in law. (K.Gopalakrishnan Vs Karunakarann rep.by the Power of Attorney Holder) 2007(2) Civil Court Cases 559 (Madras) (DB) : 2007(2) Criminal Court Cases 683 (Madras) (DB)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Power of attorney holder - It is not required to record the sworn affidavit of complainant also on a future date to enable the Court to exercise its discretion u/ss 202 & 203 of Cr.P.C. (K.Gopalakrishnan Vs Karunakarann rep.by the Power of Attorney Holder) 2007(2) Civil Court Cases 559 (Madras) (DB) : 2007(2) Criminal Court Cases 683 (Madras) (DB)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Pre mature complaint - Cannot be rejected on this ground alone - However, cognizance can be taken on such a complaint after it is matured. (Yogendra Kumar Chaturvedi Vs Ashok Kumar Goyal & Anr.) 2007(1) Civil Court Cases 387 (Rajasthan) : 2007(2) Criminal Court Cases 334 (Rajasthan)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Pre-mature complaint - However, cognizance taken after maturity of complaint - Mere presentation of pre mature complaint need not necessarily render the complaint liable to be dismissed - No ground to quash proceedings. (Prashant M.Aachawal Vs Gulab Singh Raghuvanshi) 2007(4) Civil Court Cases 251 (M.P.) : 2007(4) Criminal Court Cases 201 (M.P.)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Premature complaint - Not proper to dismiss complaint - Complaint should be kept pending till the ripening of cause of action or complaint to be returned with an advice to the complainant for presentation after completion of necessary statutory period. (V.S.Shivadas Vs Ramanath Shetty & Anr.) 2007(2) Civil Court Cases 747 (Karnataka) : 2007(2) Criminal Court Cases 905 (Karnataka)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Production of books of account maintained by complainant - Permissible only when debt or liability is disputed by accused and existence of account books/papers is admitted by complainant. (Rajeev Soni Vs Indresh Singh) 2007(2) Civil Court Cases 782 (M.P.) : 2007(2) Criminal Court Cases 888 (M.P.)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Quashing of complaint - Whether there is any enforceable debt, whether accused gave the cheque for discharge of such debt and whether there was any material alteration in the cheque are the questions to be considered during the course of trial - Complaint not to be quashed on these grounds. (Maganti Ganta Avadhani Vs Kopuri Sreenivasa Rao) 2007(4) Civil Court Cases 034 (A.P.) : 2007(4) Criminal Court Cases 294 (A.P.)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Quashing of complaint on ground that complainant is not a holder in due course - Question can be decided only when parties lead evidence - No ground to quash complaint. (Anil Kumar Jaiswal Vs State & Anr.) 2007(2) Civil Court Cases 730 (Allahabad) : 2007(2) Criminal Court Cases 982 (Allahabad)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Receipt of information from Bank - It can be in any language and through any mode - written, electronic, fax or even verbal. (A.K.Chaudhary & Ors. Vs Nandita Malhotra) 2007(4) Criminal Court Cases 593 (Delhi)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Sentence - Cheque amount 4 lakhs - Accused sentenced to two years imprisonment and to pay compensation of Rs.5 lakhs - Sentence reduced to one year imprisonment but order of compensation upheld. (Sharad Kumar Tiwari Vs Smt.Laxmi Tiwari) 2007(4) Criminal Court Cases 808 (Rajasthan)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Sentence - Cheque amount Rs.20,000/- - Accused sentenced to undergo imprisonment till rising of Court - Accused to pay Rs.27,000/- as compensation and in default to undergo S.I. for a period of one month - If realised the entire amount be released to the complainant. (K.P.Rathikumar Vs N.K.Santhamma & Anr.) 2007(4) Civil Court Cases 546 (Kerala) : 2007(4) Criminal Court Cases 343 (Kerala)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Sentence - Two cheque of the value of Rs.55,500/- - Fine imposed Rs.2500/- in each case without any direction to pay amount due on cheques bounced - Complainant should at least be compensated with the amount due by the accused on the cheque issued by him - That should be the rule unless there are good reasons to depart from the same - Sentence imposed set aside and case remanded with a direction to pass appropriate sentence in accordance with law. (Shri Basavraj D.Allayyanvar Vs Shri Santosh Kapadi) 2007(3) Civil Court Cases 658 (Bombay) : 2007(3) Criminal Court Cases 437 (Bombay)

 Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Service of notice by hand delivery - Refusal - Presumption of service cannot be raised as the same is not effected in terms of the statute. (M/s. Sarav Investment & Financial Consultants Pvt. Ltd. & Anr. Vs Llyods Register of Shipping Indian Office Staff Provident Fund & Anr. ) 2007(4) Criminal Court Cases 527 (S.C.)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Seven cheques issued on different dates - Separate notices issued - Seven complaints are maintainable - However, in case single notice is issued then all the transactions covered by the notice would be regarded as a single transaction, permitting a single trial. (Rajendra B.Choudhari Vs State of Maharashtra & Anr.) 2007(2) Civil Court Cases 523 (Bombay) (DB) : 2007(2) Criminal Court Cases 748 (Bombay) (DB)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Seven cheques issued on different dates - Separate notices issued - Seven complaints filed - Trial for each offence held separately and accused convicted - Held, it is not obligatory for the trial Court to direct in all cases that subsequent sentence shall run concurrently with the previous sentence - Refusal of Magistrate to direct the subsequent sentence to run concurrently with the previous sentence cannot lead to causing miscarriage of justice. (Rajendra B.Choudhari Vs State of Maharashtra & Anr.) 2007(2) Civil Court Cases 523 (Bombay) (DB) : 2007(2) Criminal Court Cases 748 (Bombay) (DB)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Signature in cheque - Admission of signature in cheque is not equivalent or synonymous with admission of execution - By mere admission of signature right of accused to contend that a blank signed cheque was misutilised by the payee is not taken away. (Bindu Vs Sreekantan Nair) 2007(2) Civil Court Cases 517 (Kerala) : 2007(2) Criminal Court Cases 626 (Kerala)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Signature on cheque denied - No steps taken to prove that the said signature is that of the accused - Complaint is liable to be dismissed. (Nagaraja Upadhya Vs M.Sanjeevan) 2007(4) Civil Court Cases 387 (Karnataka) : 2007(4) Criminal Court Cases 167 (Karnataka)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Signatures denied - Handwriting expert - When cheque is dishonoured for insufficiency of funds then there is no need for handwriting expert to give his opinion on signature on cheque - In case of denial of signature of drawer of a cheque, the best witness would be the concerned Bank Manager and not a handwriting expert - Impugned order allowing application not sustainable in law. (H.M.Satish Vs B.N.Ashok) 2007(2) Civil Court Cases 328 (Karnataka) : 2007(2) Criminal Court Cases 549 (Karnataka)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Signed blank cheque - Defence that a signed blank cheque was handed over by an account holder is inherently suspicious - Burden rests heavily on shoulders of account holder to claim absolution from culpable liability. (Bhaskaran Nair Vs Abdul Kareem) 2007(1) Civil Court Cases 104 (Kerala)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - 'Stop payment' - For valid reasons - Burden of proving that cheque was not dishonoured for sufficient funds and was dishonoured for valid reasons is on the accused - Complaint cannot be quashed on this ground. (Nagendra Prasad Singh & Anr. Vs State of Bihar & Anr.) 2007(1) Civil Court Cases 698 (Patna) : 2007(1) Criminal Court Cases 999 (Patna)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Stop payment - In no way absolve statutory liability cast upon accused - Accused liable to be punished u/s 138 of the Act. (Balasubbaraj Vs R.Narayanan) 2007(4) Civil Court Cases 073 (Madras) : 2007(4) Criminal Court Cases 073 (Madras)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Summoning order - Accused appeared through counsel and moved an application for exemption from his personal appearance - Application dismissed and non bailable warrants issued and also issued process u/ss 82/83 Cr.P.C. - Order set aside - Issue of non bailable warrants and issue of process u/ss 82/83 Cr.P.C. is not required when accused is represented through his counsel and it is not a case where he is absconding and evading the court process. (Sanjay Chaturvedi Vs State) 2007(2) Civil Court Cases 392 (Delhi) : 2007(2) Criminal Court Cases 044 (Delhi)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Summoning order - Detailed reasons need not to be given. (Kulbir Singh Uberoi & Anr. Vs M/s.Kumar Industries) 2007(3) Civil Court Cases 181 (P&H) : 2007(3) Criminal Court Cases 142 (P&H)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Summoning order - Has to be on the basis of allegations in complaint and preliminary evidence - Defence set up in reply to notice not to be looked into at that stage. (Kulbir Singh Uberoi & Anr. Vs M/s.Kumar Industries) 2007(3) Civil Court Cases 181 (P&H) : 2007(3) Criminal Court Cases 142 (P&H)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Summoning order - Quashing of - Plea that goods were rejected and complainant was not entitled to get the cheque encashed - Summoning order cannot be quashed on this ground - Plea is available at the time of defence. (M/s V.V.Enterprises & Anr. Vs M/s Bansal Industries) 2007(3) Criminal Court Cases 917 (P&H) : 2007(4) Civil Court Cases 037 (P&H)

          Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - There was no debt or liability at the time when cheque was given - Complaint not maintainable - Summoning order quashed. (Exports India & Anr. Vs State & Anr.) 2007(3) Civil Court Cases 198 (Delhi) : 2007(3) Criminal Court Cases 252 (Delhi)

          Negotiable Instruments Act, 1881, S.138 - Evidence Act, 1872, S.47 - Dishonour of cheque - Expert opinion - Signature on cheque disputed - Court undertook exercise of naked comparison of signatures of accused on cheque with other admitted signatures and came to conclusion that signature on cheque does not appear to be signature of accused - Court should be assisted by experts opinion - Banker is more competent to say whether it is signature of accused or not with reference to specimen signatures - Issuance of cheque proved - Presumption arises u/s 139 of Act in favour of complainant - Acquittal not valid. (Rajendra Prasad Vs M.Shivaraj) 2007(1) Criminal Court Cases 220 (Karnataka) : 2007(2) Civil Court Cases 161 (Karnataka)

          Negotiable Instruments Act, 1881, S.138 - Holder in due course - Cheque payable to bearer - Respondent is deemed to be holder in due course of cheque - Has locus to file complaint on dishonour of cheque. (Sardar Jasvir Singh & Anr. Vs State of Uttar Pradesh & Anr.) 2007(3) Civil Court Cases 534 (Allahabad) : 2007(3) Criminal Court Cases 865 (Allahabad)

          Negotiable Instruments Act, 1881, S.138 - Jurisdiction - High Court of one State cannot quash criminal proceedings pending in a Court within jurisdiction of another High Court. (Tripti Vyas Vs M/s Ahlers India Pvt.Ltd.) 2007(3) Civil Court Cases 469 (Rajasthan) : 2007(3) Criminal Court Cases 232 (Rajasthan)

 Negotiable Instruments Act, 1881, S.138 - Notice - Absence of pleading that notice was sent at the correct address of the drawer by registered post acknowledgement due - However, returned envelope annexed to complaint and thus it formed part of the complaint - Returned enveloped showed that it was sent by registered post acknowledgement due to the correct address with endorsement that 'the addressee was abroad' - Held, requirement of S.138 of the Act is sufficiently complied with. (C.C.Alavi Haji Vs Palapetty Muhammed & Anr.) 2007(2) Apex Court Judgments 526 (S.C.) : 2007(3) Civil Court Cases 001 (S.C.) : 2007(3) Criminal Court Cases 037 (S.C.)

 Negotiable Instruments Act, 1881, S.138 - Notice - Claim as to non receipt of - Drawer can still make the payment of cheque amount within 15 days of the receipt of summons and can absolve himself of prosecution u/s 138 of the Act - If drawer does not make payment of cheque amount within 15 days of the receipt of summons then plea of proper service of notice is not available to him. (C.C.Alavi Haji Vs Palapetty Muhammed & Anr.) 2007(2) Apex Court Judgments 526 (S.C.) : 2007(3) Civil Court Cases 001 (S.C.) : 2007(3) Criminal Court Cases 037 (S.C.)



Learning

 17 Replies

Arvind Singh Chauhan (advocate)     27 April 2010

Raj Sir,

             Thanks for this very usefull compilation.

ramji (self)     28 April 2010

thanks for details very interesting, will you pls lsit/send case law for first case Sumida Internetional V?s Rama vision, i have similar case  for arguements  very soon. thanking you in advance

1 Like

ramjishyamji (consultant)     29 April 2010

request case law of sumida international V?s rama vision, Directors resigning after signing the cheque but before presentation.I have similar situation.Request urgent help.Thanks in advance

BABUBHAI THAKKAR (CEO)     01 October 2011

Dear Mr. Rajkumar,


I go through your cheque related collection, excellent. Can you guide us in following case with judgement of cupreme court??

 

  • Our is a partnership firm.

  • We filed a complain against dishonour of cheque under 138 in lower court.The manager of our firm signed the complain.

  • Manager left the firm.

  • The lower court denied the alteration of complainant. The complain was registered in the name of Partneship firm. Complain quashed in lower court in absent of origional complainanat.

  • We approached high court. The same  no alteration allowed for complainant.Origional complainanat must sign petition in high court .No alteration is permitted in criminal procedure.

  • How we can file petition now insupreme court.

 

Prakash (Director)     02 October 2011

Hi Rajkumar,

Look like you are Master in NI ACT!!!!!

Kindly clarify the following.

1. When cheque return uppaid, legal notice to be served to the party before 30 days, is it correct ?

2. if the Party is not responded to our notice before 15 days / 30 days i am not sure  but i come to konw that we should give 30 days time as per ammeded in NI Act 2003 and wait for reply for our notice, please clarify

3 Due date for filing case is not clear by our advocates,  they told us should be filied before 15 days if the party was not responded but i got informtion from internet information (some of  the legal firm) mentioned that 30 days from due date from party.

Hence, Drawee should have time to intimate to party 30 days and wait for 30 days for responce and file a case before expairy of 30 days  so, total 90 days from the date of cheque return.  Is it correct, Is there any amedment in NI Act in the year 2002 or 2003

Kindly clarify  and it will help  us lot.

Many thanks in advance.

Prakash.

sayli bhosale (student)     29 January 2012

sir,

if a cheque is given as a security and the cheque is dishonoured twice on the grounds of insuffient funds wht r the liabilities of the party who has given the cheque..

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     29 January 2012

1) Mr Thakkar please either post or send your HC judgement.

2) Mr RAMJI just sighning the cheque does not create liability , you have to show circumstances of vicarious liability in your pleading.

Suppose there is a worker in a shop and he acts on the intructions of the master , he is not liable.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     29 January 2012

SAYALI for the given problem there are many defense routes open for the accused.

 

 

Cheque bounce cases- opportunities for accused to win are immense.

Cheque bounce law is stringent 1) cheque was from the account of accused 2) it is bounced far want of funds 3) liability is presumed and summery procedure for fine and conviction.

 BUT ACCUSED HAS RIGHT TO REBUT THE PRESUMPTIONS. Law can not provide for all the eventualities /possibilities and hence power of defense which is power of negative is immense. Darkness is perpetual light has to be sustained.

Law does not work like maths or computers-

Law does not work like a math problem. Whatever you do still all the probabilities can not be provided in any law and that is why every case is different.

Why so many courts, appeals , revisions and advocates on both sides., because numerous interpretations are possible for any written law.

 


(Guest)

Absconder -Proclaimed offender - Accused failed to appear before court – Wife and children refused to give his whereabouts. – In such circumstances accused has to be treated as absconder – accused left country – even then he is absconder. 2003 (2) CTC 17.

Present again – stop payment – attracts 138 – provisions where incorporated with the object of inculcating faith inefficacy of banking operations – 2003 (1) CTC 752 SC.
Inferior goods – invalid plea – accused should let cogent evidence – accused would have intimated complainant about rejection of goods by end user and would have asked to take goods back – accused should true that stop payment notice given for other valid causes. 2003 (1) CTC 282.
Partner – definition – person in charge – person in charge must mean that the person should be in over all control of the day today business of the firm – he should be a party to the policy being followed by the company and yet not in charge of the business of the firm – offence must be proved was committed with the knowledge and connivance of the accused. 2003 (1) CTC 127 SC.

Promissory – promissory must be in writing and there should be unconditional undertaking to pay. 2003 (1) 36.

Section 204 Cr.P.C. not maintainable after examination of witness begins. Sections 245 applicable only for warrant cases not for Sec.138 NIA. 2002 (4) CTC 335.

Notice - returned unclaimed - again send to another address after 15 days – valid – complainant sent notice on 29-05-1999 – returned on 09-06-1999 as unclaimed - complainant on coming to know that accused was available else where sent copy of same notice on 24-06-1999 – period of limitations start after 15 days from second. 2002 (4) CTC 335.

Holder in due course – cheques endorsed after dishonour – valid – (against 2002 (3) CTC 424) 2002 (4) CTC 323.

Quash not liable – After examination of PW1 –person accused of offence under Section 138 NIA filed petition to quash proceedings after examination of PW! On 2 different dates – not sustainable. 2002 (4) CTC 323.

Complaint by manager of firm – valid – manager can represent firm – valid complaint. 1997 (2) CTC 478.

Vice-president – no role in business – not liable – petitioner who is vice-president of company but has no role in conducting business need not be arrayed as accused. 1997 (2) CTC 524.

Authorization afresh valid – authorization -need for substitution to represent company – filing of complaint - authorised resigning from company – company can be represented by person authorized afresh. 1997 (2) CTC 675.

Pronote – chit transaction-mentioning mentioning mandatory – incorporation of recitals about chit transaction in promissory note is mandatory requirement. 1997 (1) CTC 284.
Partner or not is matter for trial cannot be discharged. 1997 (2) CTC 293.

Complaint without sign of complaint – presented after limitation – complaint invalid – quashed. 1997 Crl.L.J.2432.

Complaint made in the name of complainant but signed by power agent – complaint invalid. 2002 Crl.L.J.2621 AP.

No averments against directors – summons quashed. 2002 Crl.L.J.3053.HP.
Accused successfully rebutting presumptions at initial stage – proceedings can be quashed at thresh hold. 2002 Crl.L.J.3469 Guj.

Petitioner failed to produce any document to so that she is not direction of company – cannot quash. 2002 Crl.L.J. 3320 AP.

All the directors need not be arrayed as accused – unless specific allegation against them. 2002 Crl.L.J. 3291 Ker.

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.

Notice issued after 15 days of return is illegal – delay cannot be condoned by Sec, 473 Cr.P.C or Sec. 5 of Limitation Act. 2002 Crl.L.J. 3219. Del.

Cheque issued in favour of A1 to A3 by A4 and A5 – A1 to A3 discounted the cheques with complaint bank – no legally enforceable debt between complaint and accused – complaint under Section 138 NIA not valid. 2002 Crl.L.J.31993 AP.

Notice- letter written by complainant can be construed as notice under Section 138 NIA.-Complaint can be filed on 16th day –2002 Crl.L.J. 3001. Bom.

All the directors need not be added as party. 2002 Crl.L.J. 2760 Del.

Absence of mens rea should be proved by accused. 2002 Crl.L.J.2731 B.

Notice need not be sent through registered post – notice/letter sent under certificate of posting – presumed to have received by accused. 2002 Crl.L.J.2731 A. AP.

Prima facie evidence – cannot be quashed – clear averments in complaint – prima facie evidence that accused was Chairman at the time of issuance of cheque – matter for trail – cannot be quashed. 2002 Crl.L.J. 2462 Mad.

Cheque not in individual account – 138 will not lie – petitioner as owner of company borrowed loan for company – liable to repay - cheque not in case individual account – he is neither director nor looking after dismiss – Sec. 138 will not attract – seeks civil remedy. 2002 Crl.L.J. 236 AP.

Notice through telegram – no confirmation letter sent – telegram cannot be a statutory notice. 2002 Crl.L.J. 185 Mad.

MOU subsequent to issuance of cheques will not superseded cheques issued earlier. 2002 Crl.L.J.172 B.

Allegation in complaint that M.D. and director issued cheques to cheat complaint knowing fully well that they do not have sufficient funds -–complaint cannot be quashed. 2002 Crl.L.J. 172 A. AP.

Complaint by manager – valid – managing director empowered to file complaint himself – authorizing manager to file complaint – valid. 2002 Crl.L.J. 3502 Ker.

Complaint by manager – valid – complaint filed by manager of company – matter for trial – not liable to be quashed. 2002 Crl.L.J. 171 AP.

Income Tax verification – Rs.20, 000/- or more should be paid by account cheque – borrower alone is liable- thus the borrower as a class is found to be indulging in such practices – it is the borrower who was found to be evading payment of tax. Compared to the class containing of lenders, the class of borrowers can be said to be in a position evade tax by adopting by devices. 2002 SC 2188.


Sentence with fine or compensation alone valid – not all – when sentence imposed on accused consists of imprisonment and fine – accused cannot be directed to pay compensation when sentence included fine as form part. 2002 (3) CTC 703 SC.


Guarantor liable – expressions ‘any cheque’ “other liability” occurring in Section 138 indicate legislative intend that cheque issued by guarantor in discharge of debt owed by principle debtor – guarantor cannot escape criminal liability. 2002 (3) CTC 572 SC.
Remission not applicable to NIA – with regard to offences committed under central enactment (NI Act), central Government is appropriate government to grant remission – remission granted under state government order would not apply to offence under Section 138 NIA. 2002 (3) CTC 616.

Burden of proof on defendant – if admits signature – Under Section 20 the holder in due course is entitled to fill up the blank pronote – no plea no evidence can be let in – defendant admitted his signature hence burden of proof on him. 2002 (3) CTC 598.
Dishonour cheque cannot be endorsed - cheque losses its negotiability after it is dishonoured on being presented for payment - cheque in favour of R – R endorsed in favour of P – P presented for collection – returned – P returned cheque to R – R filed complaint – complaint not maintainable. (Against 2002 (4) CTC 323). 2002 (3) CTC 474.

Absence of necessary averments in complaint – directors discharged – mere allegation that directors are responsible for failure to make payment of cheque amount is not sufficient for proving offence Under Section141 (2) – not enough. 2002 (3) CTC 342.
Complaint under Section 420, 406, 468 by complainant that the cheques in blank issued to accused are - Criminal breach of trust, etc., - FIR quashed. 1999 (8) SCC 468.
No averment – directors not liable – quashed. 2002 Crl.L.J. 478 Ker.

Joint complaint in valid – joint complaint by 2 or more persons in respect of different cause of action and different offence – not maintainable – under Section 200 of Cr.P.C. 2002 Crl.L.J. 481. Ker.

Allegation – enough role of partner not necessary - making specific allegation in complaint about active participation of day today affairs – sufficient – not necessary to allege about duties discharged by accused. 2002 Crl.L.J. 642.



List of witness – not file – non-compliance of mandatory provision of Section 204 (2) – order issuing summons – set aside – directed to file list of witness. 2002 Crl.L.J. 1926 Kar.

Notice returned – left not known – deemed service - contra should be proved at trial. 2002 Crl.L.J.1926 Kar.

Post dated cheque – drawn on date it bears – post dated cheque shall be deemed to have drawn on date it bears as per Supreme Court decision in 93 Crl.L.R. (SC) 739 - 2002
Crl.L.J. (NOC) 156 Raj.

Additional evidence under Section 391 Cr.P.C. valid – if not full up lacuna – accused plead cheque was issued in respect of time bared debt – complainant filed petition under Section 391 Cr.P.C., for permission to adduce additional evidence to show that earlier cheques had been issued by accused within 3 years within limitation – the said cheques where in existence at the time of cross examination by accused before trial court – no filling up of lacuna – petition valid. 2002 (3) CTC 161.

Amendment of pleadings - Order 6, rule 17 - central rule is that a party is not to be allowed to set up a new case or a new cause of action particularly when suit on new cause of action is barred – negligence of party or lawyer or mistake in setting out the case can be corrected – remission allowed on costs of Rs.5, 000/- each two bar association and advocate association to procure law books to their library. 2002 (3) LW 123.
Stop payment – attracts 138. 2002 (3) CTC 96.

Notice returned as intimation served – deemed service accused has to prove non-service if any. 2002 (3) CTC 96.

Different ink – not valid plea – using of different ink need not necessarily mean that document is altered. 2002 (2) CTC 203.

Sleeping partner – not liable – non-mentioning of Section 245 not fatal. 2002 Crl.L.J. 1994 .P&H.

Notice returned as not claimed – deemed service – compensation to state – not proper – no procedure in code for it. 2002 Crl.L.J. 1712 Ker.

Proprietor concern not legal entity – proprietor concern is not legal entity or judicial person - case against – not maintainable – but against proprietor maintainable. 2002 Crl.L.J. 1689 Mad.

Blank pronote filed by holder – valid – inchoate instruments – Section 20 enables holder of instrument to fill up the blanks and negotiable instruments which are duly signed by drawer and deliver to holder – promissory note which did not contain writing of drawer but executed by drawee held to be valid. 2002 (2) CTC 140.

Presumption under Section 139 and 118 – rebuttal by proof and not by explanation – once facts necessary for raising presumption is established – court has no option but to raise such presumption in favour complainant which is of course rebuttal buy accused – rebuttal should be by proof and not by explanation. 2002 (1) CTC 530.

Name mis spelled in cheque – not invalid – name of payee and complainant differently spelled – return not on that ground – valid. 2002 (1) CTC 530.

Enhancement valid – court-exercising revisions jurisdiction could enhanced sentence. 2002 (1) CTC 530.
Summoning of records in appeal – invalid – at the appeal stage it is unnecessary to summon for records. 2002 (1) CTC 530.
Additional evidence in appeal – valid – appellate court can permit adducing of additional evidence if necessary – reasons to be recorded. 2002 (1) CTC 530.

Power agent – valid – complaint filed by power agent – complainant examined himself as witness valid. 2002 (1) CTC 530.

Compensation - Twice cheque amount - Section 29 Cr.P.C., bar will not applicable to High Court – sentence enhanced by directing accused to pay twice cheque amount as compensation and cheque amount directed to be paid to the complainant. 2002 (1) CTC 530.

Alteration of date - valid – cheques of year 1995 – dishonour – later by agreement drawer corrected the year as 1996 and made necessary endorsement – valid under Section 138 – even if the payee of the cheque altered the cheque validating or re-validating the same with the consent of the drawer valid. 2001 (4) CTC 570 SC.

Borrowal 4 years back – cheque now – valid. Plea of drawer that cheque was issued in respect of time barred debt incurred 4 years prior to issuance of cheque – hence no liability – plea rejected – balance sheet of payee so the balance year after year gives fresh period of limitation. 2002 (1) CTC 484 SC.

Section 138 not made out then Section 420 IPC can be drawn – quashing of complaint under Section 138 and 141 of NI Act – complaint dismissed by magistrate – High Court directs to take cognizance under Section 120-B and 420 IPC – valid. 2001 SC 3512.
Deliberate suppression of account books – the defendant discharged burden under Section 118. 1991 MLJ 183.

Sentence in default of compensation – valid – Supreme Court observed that Section 431 Cr.P.C., only prescribed that any money (other than fine) payable by virtue of an order made under the court shall be recoverable as if it were fine – proviso to Section 431 states that if sentence directs that if that such offender shall be imprisoned in default of payment of fine and etc., Hence order directing imprisonment in default of fine is valid. 2002 (1) CTC 315 SC.

Quantum of sentence – if amounts had been so paid there would have been justification for plead by sentence – sentence awarded should be such nature to give proper effect to object of legislation – no drawer of cheques can be allowed to take dishonour of cheques light heartedly. (Reversed the Madras High Court Judgement 2001 (2) CTC 595). 2002 (1) CTC 315 SC.

High Court should follow Supreme Court Judgment – also all courts in India – it is not only matter of discipline but also mandate of constitution as under Section 141 that law declare by SC shall be binding on all courts within the territory of India. 2002 (1) CTC 315 SC.

Director retired – not liable – form No, 32 also file with registrar of companies on 04-10-1999 – who ceased to be director on 04-10-1999 shall be deemed to be resigned from date of resignation i.e., before the commencement of transaction – complaint quashed against the said director. 2002 (1) CTC 227 = 2001 (2) CTC 78.

Stop payment without valid reasons attracts Section 138. 2001 (4) CTC 749 SC.
It is settled law that threshed hold High court is not justified in embarking upon enquiry as to reliability genuineness or otherwise of allegations made in complaint. 2001 (4) CTC 749 SC.

Complaint by Regional manager – Substitution subsequently - valid - No magistrate can insist that person whose statement was taken on oath at first instance alone can continue to represent the company till end. 2001 (4) CTC 749 SC.
Notice first on 29-08-1996 – Secondly on 07-09-1996 – same copy – valid – service of notice complainant sent notice on 29-08-1996 returned with endorsement as party not available and not claimed on 07-09-1996 – complainant sent very same notice dated 29-08-1996 with covering letter on 07-09-1996 – accused proceed to same on 09-09-1996 – date of sending of notice has to be construed as 29-08-1996 – 09-09-1996 has to be taken as actual service – there is no second cause of action and it cannot be said that notice was sent beyond limitation period. 20101 (4) CTC 617.

Judicial notice – Gazette notified – retirement valid – discharge petition allowed – dishonoured of cheque – complaint filed against person who had retired from partnership – retirement notified in gazette w.e.f. 13-09-1998 – cheque dated 31-12-1998 – trail court dismissed the discharge petition – High Court set aside order of trail court and discharged petitioner as his retirement as notified in gazette did not required any further proof – it is not necessary for petitioner to face trial. 2001 (4) CTC 399.

Drawer of cheque alone liable – even it is true that the cheque was issued by the first accused towards the discharge of the liability of the petitioner/second accused company. Still the 2nd accused company cannot be prosecuted as it is not the drawer – Hence the proceedings against the petitioner/2nd accused which not the drawer is quashed. 2001 (4) CTC 278.

Fine of Rs.65, 000/- by JM confirmed by SC – after the trial JM II, Kumbakonam convicted the accused U/S 138 and directed payment a fine of Rs.65, 000/- in default simple imprisonment for one year - the accused granted one month time to pay the fine – directed by the SC. 2001 (4) CTC 382 SC.

Onus of proof on accused U/S 118 and 139 of NIA Defense evidence must – Presumption to consideration – onus of proof regarding absence if lawful debt or liability – burden of proving that cheque had not been issued for debt or dues liability is on accused – formal denial by accused was held erroneous – accused did not let in evidence to prove absence of debt or liability - –conviction confirmed. 2001 (4) CTC 3282 SC.

Partners not mentioned in form A – not liable – Discharge maintained – Prosecution against person who is not parties – form “A” does not reflect name of revision petitioner as partner at relevant point of time – High court discharged petitioner relying on entry in form “A” as it is public document and Judicial notice can be taken. The petitioner filed an application for discharge from the case. It was rejected by the trial court – HC discharge the accused in revision. 2001 (4) CTC 354.

Liability by company – cheque by employee loan Account – company not liable – Financial liability of company – employee of company issuing cheque in his individual capacity to discharge liability to company – company and employee both arrayed as accused – proceedings against company quashed. 2001 (4) CTC 278.

“Holder” definition – Pay order issued by Co-operative Bank in favour complainant bank on account of their customer – complainant bank got assignment of such instrument – Holder means any person entitled in his own name to possession of cheque and to receive or recover amount from parties there to – complaint bank was also holder in due course as they become possessor of pay order before it became payable. 2001 (4) CTC 183 SC.
Drawer/Drawee – Same person – 138 lies – Bill of exchange must direct certain person to pay particular sum of money – three persons are not absolutely necessary to constitute bill of exchange – Phrase directing certain person to pay need not necessarily refer to third person – Drawer and drawee in bill of exchange could be same person. 2001 (4) CTC 183.

Pay order lies U/S 138 – Co-operative bank true pay order agreeing to pay complainant bank on account of particular customer – complainant bank got pay order assign to its name from customer – complainant bank presented such pay order and it was returned dishonoured for want of funds – pay order is either bill of exchange or promissory note – holder of such instrument is entitled to treat it as either bill of exchange or promissory note in terms of Sec.

17 of NIA – Complainant bank having elected to treat pay order as cheque, such pay order becomes cheque. 2001 (4) CTC 183 SC.

Magistrate can consider offence U/S 420 IPC (if not U/S 138 NIA) - Magistrate refusing to take cognizance of offence U/S 138 – HC on revision up holding order of Magistrate but remanding matter to consider U/S 420 IPC – Magistrate can take cognizance after enquiry. 2001 (4) CTC 189 SC.

Notice to company enough – Debt includes others liability also – Notice to company enough – Debt or other liability includes due from other than drawer. 2001 Crl.L.J. 2392 (A) Mad.

Joint A/ C – return as “signature required from another director” – 138 lies. Cheque returned as ‘account operation jointly. Another director signature required’ – Amounts to dishonour. 2001 Crl.L.J.2297 (A) Bom.
Earlier cheque for bill discounting not valid for subsequent HP transaction – Blank cheques issued for “bill discounting facility” Subsequently accused issued another set of cheques for hire purchase agreement – earlier cheques cannot be used for this. 2001 Crl.L.J.1585.

Non giving of reply notice will not grand for conviction. 2001 Crl.L.J.1585.
Sec.420 is valid even after Sec.138 is introduced. 2001 Crl.L.J.1489 (B).
Registration from firm should be proved in trial only. 2001 Crl.L.J. 2945 (D).
DJ can restore the case dismissed for default - complaint dismissed for default. The JM becomes functus officio and complaint cannot be restored. However DJ can restore, if counsel immediately represent after dismissal. 2001 Crl.L.J.2821. Kar.
Principal also liable. Cheque issued by authorised signatory given by principal – Principal would bound by act if mandate holder, who primarily liable. 2001 Crl.L.J. 3120 Mad.

Presumption - Once cheque was issued by drawer to payee it shall be presumed that it was issued for discharging legally enforceable liability. 2001 (3) CTC 403.
Peculiar return – Comes U/S 138 – Cheque returned as “payee’s vernacular endorsement requires attestation by drawer of by a Magistrate with seal”. This reason of endorsement is quite irrelevant. 2001 (3) CTC 403.

No averments about funds in complaint – plea rejected. Complaint cannot be quashed merely because complaint does not contain averment regarding insufficiency of funds. 2001 (3) CTC 403.

1st notice not U/S 138 (b) – 2nd notice valid – No cause of action for 2nd notice. But if notice U/S 138(b) issued after 15 days no cause of action for that notice. 2nd notice valid. Once notice as contemplated U/S 138 (b) is issued within prescribed period of 15 days and no complaint is filed there on drawer committing default of compliance of such notice – payee cannot represent same cheque and create another cause of action. 2001 (3) CTC 309 SC (DB).

Complaint by manager through power deed for company – valid – Complaint by manager of payee company on the strength of power of attorney deed is held to be valid. 2001 (3) CTC 301.

Defense evidence must – The rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defense that the court must either believe defense to exist or consider its existence to be reasonably probable. 2001 (3) CTC 243 SC.

Special `court jurisdiction for Sec.138. Special court shall have jurisdiction to try offence U/S 138 if it relates to transactions in securities during 01-04-1991 and 06-06-1992 irrespective of date if commission of defense. 2001 (3) CTC 243 SC.
Section 139 Presumption by law – presumptions U/S 138 and 139 makes if obligatory on part of court to raise such presumptions where factual basis has been made for raising such presumption. 2001 (3) CTC 243 SC.

Correction of date should be within 6 months – The validity of cheque U/S 138(a) is 6 months only, hence if any correction of date should be done within that period. (Over ruled SC). (Contra to 2001 (3) CTC 25.) 2001 (1) LW (Crl) 332.

Stale cheque – complaint cannot be dismissed so – Magistrate without considering allegation simply dismissed complaint on ground as stale cheque – unsustainable (cheque was returned as funds insufficient and stale cheque) 1998 II Crimes 375.

Questioning on sentence – not necessary. Questioning about sentence U/S 252 of Cr.P.C with accused not necessary in summons case. 2001 (3) CTC 25.

Corrected date – valid – 6 months from correction. Six months period contemplated U/S 138 would commence from last corrected date as shown in cheque – accused requested complainant not to present same for payment immediately and that complainant could correct date of cheque and present for payment. (Contra 2001 (1) LW (Crl) 332) 2001 (3) CTC 225.

Give severe punishment – The judicial magistrate are directed to keep in mind the object of providing stringent punishment and the guide lines given by the Apex court in case 2001 (1) CTC 368, which awarding sentence on the accused who is found guilty of an offence U/S 138. (Finding para 12) 2001 (2) CTC 595.

HC can alter nature of sentence – This court can only alter the nature or the extent of sentence of alter the nature and the extent of sentence but a fresh compensation cannot be awarded (para 10 finding) 2001 (2) CTC 595.

Notice under instructions from power agent – valid notice. 2001 Crl.L.J. 2155.
Notice demands cheque amount, cost, etc., not invalid. 2000 Crl.L.J. 1391.
Vicarious liability – Other directors not liable – must prima facie disclose acts by other directors. Complaint must prima facie disclose acts committed by Directors from which reasonable inference can be drawn regarding vicarious liability. 2001 (2) CTC 347.
Before trail – can be discharged – on perusal of public document. Court is within its power to consider even materials which accused may produce even before commencement of trial to decide whether accused is to be discharged – public document can be looked in to – form 32 is such a document. 2001 (2) CTC 78 = 2002 (1) CTC 227.

Sufficiency of averments – Authorised signatory – liable. Complaint containing clear averments that cheques were issued by authorised signatory of company only at instruction of other directors – they are liable. 2001 (2) CTC 78 = 2002 (1) CTC 227.
Retired director not liable. Form 32 reveals that 2nd petitioner did not function as director either on ate of cheque or when cause of action arose for non-payment – quashed. 2001 (2) CTC 78 = 2002 (1) CTC 227.

Bills of exchange and cheque – Post dated cheque is bill of exchange till date that bears arrives. Cheque is also bill of exchange but it is drawn on banker and payable on demand. Bill of exchange even if drawn on banker is not payable on demand and is not cheque. 2001 (2) CTC 57 SC.

Date of cheque should be taken – not date of issue – Six months time commences only from date which cheque bears and not date on which it was handed over to complainant. 2001 (2) CTC 57 SC.

Cheque issued by company – unless company liable – other directors not liable. Unless the company is made liable the question of punishing the person who are anchorage it and are responsible for business does not arise. Therefore, actual offence should have been committed by the company and then above the other two categories of persons U/S 141 (1, 2) become liable. 2001 (1) CTC 725.

Notice to company valid – other directors not necessary. Notice served on company but not MD and director who are parties in complaint – is valid notice U/S 138. 2001 (1) CTC 725.

Date of making complaint – is date for limitation – Making of complaint cannot be equated with taking cognizance of an offence – Bar by limitation U/S 142(b) applies for “making complaint” and not for “taking cognizance. 2001 (1) CTC 725.
Security plea rejected. Signature admitted – presumption can be rebutted – cheque issued for security – unacceptable. 2001 (1) CTC 671.

Criminal case U/S 138 cannot be stayed on ground of pending of Civil Suit. 2001 (1) CTC 671.

Cr.P.C. Sec. 420. Failed to pay installments, as per agreement – criminal case will not lie – it is pure civil nature. 2001 (1) CTC 624.

Post office savings bank also covers U/S 138. 2001 (1) CTC 616 SC.

Cheque should be presented within six months at paying bank. Cheque should be presented within 6 months (or) within validity which ever is sooner, at paying bank, not at collecting bank. 2000 Crl.L.J. 1152 Guj.

Notice to correct address – return as “out of station” – valid service. Notice sent to correct address – returned as “out of station” – deemed service – valid notice. 2000 Crl.L.J. 1005.



Material legal infirmities in complaint – fatal. Material legal infirmities in complainant’s story successfully rebut the presumption against accused – acquittal of accused proper. 2001 Crl.J. 745 Kar.

Interpretation of law – should achieve purpose of act. Law should be interpreted in light of objects intended to be achieved but such law – such interpretation is necessary even it deviates from general law. 2001 (1) CTC 538.

Reply as ‘received empty cover’ – second time collection & Notice – valid. Payee of cheque sending notice to drawer on dishonour – drawer sending reply that he received only empty envelops – payee - representing cheque and issued another notice and after compliance of act – Valid. 2001 (1) CTC 538.

Giving notice will not make an offence but receipt of notice must. Giving of notice by payee does not make an offence and ‘receipt’ of notice by drawer alone gives of action. 2001 (1) CTC 538.

Averments against other directors – must. Lack of averments as to other directors participation in day today affairs of company complainant must specifically allege that such person was in fact in charge and responsible for affairs of company. 2001 (1) CTC 425.

Condition to pay cheque amount while suspending sentence – valid. There is nothing unjust or unconscionable in imposing such condition while suspending sentence for offence U/S 138 – portion of fine should at least be directed to be remitted in court if fine is heavy while praying for suspension

No notice to company – but to MD who signed cheques – valid. No notice was issued to company on behalf of which cheque was issued – want of notice to company will not invalidate criminal proceedings against director who issued the cheque – provision for notice cannot be construed in narrow technical way with examining subject matter – prosecution is maintainable. 2001 (1) CTC 170 SC.

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Entire payment of cheque made – even then offence is not absolved. Once offence is committed, any payment made subsequently will not absolve accused if liability of criminal offence but may have effect in awarding sentence. 2001 (1) CTC 170 SC.
Bank officer need not be examined. It can be taken as evidence without examine the bank officers. 2000 MLJ (Crl) 343.
Director not in charge of business not liable. Director of company who was not in charge of or was responsible for conduct of business of company at time of commence cannot be prosecuted as such person does not fall within purview of sec. 141 of NIA. 2002 (4) CTC 432 SC.
Premature complaint – valid. Filing of complaint and taking cognizance of an offence – distinction – mere presentation of complaint in court does not mean that its cognizance has been taken by magistrate – Date of filing of complaint is not crucial and date if taking cognizance is relevant – mere presentation of complaint at an earlier date need not necessarily result in dismissal of complaint or confer any right upon accused to absolve himself from criminal liability. 2000 (4) CTC 55 SC.

No plea – No evidence can be let in. 1990 (1) MLJ 127. 1992 (1) MLJ 188.
Left. Legal notice returned as “left” comes under Sec. 138 B. 2002 MWN AP 51/98.
Complaint presented by P.A., but signed by complainant – valid. Complaint presented by power of attorney but signed by complainant himself - complainant need not described as MD – descripttion of complainant in cause title would not defeat prosecution since complainant has signed complaint. 2000 (3) CTC 680.

Complaint by “PA” without prior permission of complaint – valid. Complaint presented by power of attorney is maintainable even though complaint was not presented after obtaining prior permission from court – such illegality would not vitiate proceedings. 2000 (3) CTC 680.

Fine exceeds Rs.5, 000/- illegal/security of immovable property can be considered. Magistrate imposing sentence of 6 months and fine of Rs.12.82 lakhs will be paid as compensation – no compensation can be awarded where sentence is not only imprisonment but also fine. Para – 8. Accused given immovable properties as securities – (matter dismissed). 2000 (3) CTC 207.

Recall filling up lacuna – not valid. Petition U/S 311 of Cr.P.C. to examined PW.3. Bank officer to lead evidence regarding the fact misquoted by PW1 complainant – held, to fill up lacuna – petition not maintainable. 1999 Crl.L.J. 1097.

Authorised signatory – liable. Authorised signatory of company is liable to be prosecuted. There is no resolution appointing him by the board – not necessary - plead rejected. 1999 Crl.L.J. 229.

Improving case in counter – invalid. It is well settled law that it is not open to the respondents to improve their case by furnishing certain details in counter affidavit. 2000 (3) CTC 137.

Service of notice not mentioned in complaint/fatal. The only ground on which the learned counsel for the appellant prays for quashing of the complaint is that on the assertions made in Para 8 of the complaint, it must be held that notice has not been served - Sec. 138 states that … That being so in the complaint itself having not been mentioned that the notice has been served, on the assertions made in Para 8 of the complaint, the complaint itself is not maintainable – quashed. 1999 (3) CTC 164 SC.

Oral power enough. It was held in AIR Vs, Ramachandran (AIR 1961 Bom 292) that ‘order 6, rule 14 - signed by any person duly Authorised by him to sign the same’ in rule 14 need not be restricted to written authorizations. In the authorization is proved, even an oral authorization should be taken as sufficient’ – though the said decision is based on order 14 CPC there is no distinction as far as the authorization is concerned between civil and criminal laws. 1999(3) CTC 143.

(Family members) Other partners not liable U/S 420 Crl. Proceedings not a short cut. Family members of accused/drawer of cheque – Crl. Proceedings against them U/S 406 & 420 IPC held to be an abuse of process of law – quashed. Crl. Proceedings are not short cuts for other remedies available in law – any how 138 proceedings to be continued. 2000 (2) CTC 107.

Borrowal allegation – enough. Statement that accused had borrowed money and towards repayment he had issued cheque – Held there are sufficient pleadings to indicate that cheques were issued for discharge of existing debt. 1999 (1) LW (Crl) 414.

Premature complaint invalid. Complaint filed before expiry of 15 days from date of service of notice – complaint being premature – liable to be quashed. 2000 Crl.L.J.2572 (J&K). (Contra. 99 Crl.L.J. 949 = 2000 (4) CTC 55 SC. Premature complaint valid)
No plea to prosecute partner for company – accused not liable. Accused not sought to be prosecuted in his capacity as officer or person in charged of responsible to conduct of business of company – complaint against accused liable to be quashed. 2000 Crl.L.J.
2526 AP.

Transfer of cases t

o one court – same parties – allowed. Parties in all cases are same. In interest of justice and also for convenience of conducting trial complaints directed to be transferred to Chennai from Hydrabad. 2000 Crl.L.J.2472. SC.
No bar on sick companies. It commission of office U/S 138 NIA was completed before commencement of proceedings U/S 22(1) of Sick Industrial Companies Act 2985 there is no prohibition in maintaining prosecution U/S 142 of the NI Act. 2000 (2) CTC 548 SC.
Allegation not necessary against partners. Express allegation need not be required to be made against such partner who active in day today affairs. 98 Crl.L.J. 10 © Guj.
Process recalled. Sufficient material to proceed against accused – recalling process not proper. 98 Crl.L.J. 1680 (A) Kar.
Capacity of lending. Complainant failed to prove capacity of lending huge amount – accused not liable to be punished. 98 Crl.L.J. 1680 (A) Kar.
Making part payment after filing complaint – accused cannot be acquitted. 98 Crl.L.J. 881.
Examine post man – plea rejected. Plea to examine postman in later stage – plea rejected. 98 Crl.L.J. 3671.
Defect in structure cheque not attract Sec. 138. Structural defect in cheque – cheque returned as not computerized to honour the same – Sec. 138 will not attract. 98 Crl.L.J. 4750 Bom.
Amount in account left for particular cheque should be proved. Unless it is shown that such payment was made towards the amount payable under cheque – proceedings cannot be quashed. 98 Crl.L.J. 3525 (A) Raj.
Sec. 2 of Power of attorney act. Power agent can act as donor. The section declares that every thing done by donee is as done by donor. 98 Crl.L.J. 3870 Guj.
Consideration past/future valid. A consideration can be past, present or future and therefore, promise to deliver goods in future can be termed as future consideration, and if any cheque is given for future consideration, it cannot be said as unlawful. 1996 Crl.L.J. 3099.
Not claimed/deemed service. Intimation given – notice not claimed – willful negligence – notice deemed served. 1998 II LW (Crl) 468.
I notice not claimed. II notice not valid. Ist notice returned as unserved, No cause of action for II notice. (Finding). 1997 Crl.L.J. 4275 AP.
Cause of action arises only once. 1999 MLJ (Crl) 649.
Twice fine not must. Impose fine twice the cheque amount – not imperative that court should impose in all cases. 1999 MLJ (Crl) 241.
Interest. Claiming interest in notice not illegal. 1999 MLJ (Crl) 269.
15 days time in notice not necessary. Mentioning 15 days time in notice is not necessary. 1999 MLJ (Crl) 138.
Substitution valid. Complaint filed by one person. Subsequently deed altered and another person Authorised – valid. 1999 MLJ (Crl) 727 Kar.
Unregistered firm – can file complaint. Complaint filed by unregistered partnership firm is valid. Registration is required for civil rights only. 1999 MLJ (Crl) 727 Kar. (Contra 1999 (2) CTC 540. Unregistered firm cannot file suit.)
Enhancement of punishment. Sentence inadequate, hence the same can be modified. 1999 MLJ (Crl) 111.
All partners not liable. It would be travesty of justice to ask all the partners to prove that the offence was committed without their knowledge. 1989 SC 1982.
Company not liable if cheque issued individually. Complaint against 1st accused company who is not drawer of cheque is not maintainable – Complaint against company quashed. Cheque issued by 2nd accused in individual capacity for company. 2nd accused alone is liable. 2000 (2) CTC 443.
Notice and case against MD valid. Complaint filed against Managing Director who has signed cheque – Notice issued to signatory of cheque is valid – No infirmity in issuing notices U/S 138. 2000 (1) CTC 302.
Complaint can be filed either by party or by pleader.
Power deed not filed at the time of filing – valid.
The court has’ duty’ not ‘power’ to accept the complaint.
Complaint can not be returned for curing defects etc..,
All documents not necessarily are filed/mere complaint is enough?
Number should be given via separate register, while filing.
Limitation applies for filing only/not for representing, etc. 2001 (1) CTC 225.
Company not necessary party. Complaint can be proceeded with as against other person even if prosecution proceedings against company were not taken. 2001 (1) CTC 94 SC.
Power agent by MD of company – invalid. Private company filed case – power of attorney agent of MD of private company has no locus stand in the absence of authorization by means of company resolution – delegate cannot delegate. 1999 (3) CTC 764.
Notice by drawer – valid. Cheque can be presented any number of times: - Valid notice – no form of notice is prescribed under Act to drawer on dishonour of cheque – notice sent by drawee directing drawer to arrange for payment on re-presentation of cheque and threatening to initiate criminal action constitutes valid notice for purpose of this section. Sec.142 – police could not start investigation without written complaint. 1999 (3) CTC 611 SC.
Cause of action commences from. Arose after 15 days from the date of return of the notice as unclaimed. 1999 (3) CTC 358 SC.
Compensation un limited. No limit is mentioned in Sub.sec. (3) of Sec. 357 Cr.P.C. magistrate can award any sum as compensation but reasonable. 1999 (3) CTC 358 SC.
Notice returned unclaimed deemed as served. Payee’s duty is over by dispatching notice. A payee can send the notice for doing his part for giving the notice. Once it is dispatched his part is over and the next depends on what the sendee does. Evading service of notice is deemed served. 1999 (3) CTC 358 SC.
Fine/Sentence. Magistrate cannot impose fine exceeding Rs.5000/-/sentence not exceeding three years. High court cannot increase the sentence imposed by trial court (Sec, 386 Cr.P.C.). 1999 (3) CTC 358 SC.
Jurisdiction Territorial. 1). Drawing of cheque 2). Presentation of cheque to bank. 3). Returning of cheque unpaid by ban. 4) Giving notice in writing to drawer of cheque demanding payment. 5) Failure of drawer to make payment within 15 days of receipt of notice – five difference acts were done in fine difference localities - complainant can choose any one of courts exercising jurisdiction of any one local area within territorial limit of which any of those 5 acts done. 1999 (3) CTC 358 SC.
No evidence that accused had charged his residence or that he had not received notice beyond his control – plea rejected. 1998 (2) Crimes 191 Kar.
Notice not claimed – without proof of change of address. 1998 (2) Crimes 191 Kar.
Notice received by some other – not valid. Notice received by some one else other than proprietorship concern - invalid. 1999 LW (Crl) I 395.
Without proprietor – not valid. Prosecution against proprietorship concern without impleading proprietor – invalid. 1999 LW (Crl) I 395.
Belated petition U/S 91 Cr.P.C. – valid. Petition filed U/S 91 Cr.P.C. to prove his case and for rebuttal of the presumption U/S 138 of NIA – petition filed during examination U/S 313 Cr.P.C. – Right of the accused can not be nagatived on the ground as belated. 1999 LW (Crl) I 82.
Authorization not proved – valid. Complaint filed by company through manager authorization not produced – existence of authorization not being a pre condition, complaint maintainable. 1999 I Crl.L.J. 1032. Bom. (Contra 99 Crl.L.J. 419 AP).
Notice to MD valid. Notice issued to MD and not to company - complaint against company
Maintainable – notice valid. 1999 (3) CTC 179.
Authorization. If the authorization is proved even an oral authorization should be taken as sufficient. 1961 Bom 292.
Other partners not liable. Initiating prosecution against sleeping partners or own, when the company is main offender cannot sustained. 1992 LW (Crl) 120.
Other partners not liable. There may be ladies and minors who were admitted for the benefit of partnership. They may not know anything about the business of the firm. It would be travesty of justice to prosecute all partners and ask them to prove under the proviso to sub section (1) that the offence was committed without their knowledge. 1989 SC 1982 = 1983 Crl.L.J.159.
Stop payment – attracts Sec. 138. 1996 (1) CTC 193 = 1996 I LW (Crl) 325. Also 1997 (1) CTC 54.
Notice refused – valid service. Service on directors of company to proper address which was refused is valid service. 1999 (3) CTC 143.
Cheques given as security – not valid. Dishonour of cheques given as security towards loan would attract Sec. 138 NIA. 1999 (3) CTC 143.
Authorization after filing – valid. Subsequent authorization given cannot be thrown out on the ground that there was no authorization given at the time of filing complaint. 1999 (3) CTC 143.
Other directors not liable. Except for bald averment there was no evidence to show that they were in charge of and responsible for conduct of business of company. 1999 (3) CTC 143.
Stop payment – Attracts Section 138 NI Act. 1999 (3) CTC 143.
Premature complaint – valid. Premature complaint – complaint filed before expiry of 15 days from date of service of notice – sum not paid even after 15 days – magistrate can take cognizance of such complaint. 1999 Crl.L.J. 949 © Raj. (Overruled 2000 Crl.L.J. 2572 J&K).
JM can fine more than Rs.5000/-. JM can impose more than Rs.5, 000/- in view of the Sec. 142 of NI Act. (Dissented by Raman J.) 1999 Cr.L.J.968 Mad. = 1999 (2) CTC 652 (FB).
Abetment charges – invalid. MD and salesman of company at relevant time are not liable for refund of amount by present MD – No abetting charges against them are liable U/S 138. 1999 I Crl.L.J.75.
Time not necessary. Firm need not be included as accused unless
(1). It is established that the firm alone was liable to discharge liability.
(2). Return memo issued after 10 days by bank, notice issued within 15 days after the said
10 days valid. 1999 Crl.L.J.934,
Authorization not produced – valid. Complaint filed by company through manager authorization not produced – existence of authorization not being a pre condition – complaint maintainable. 1999 I Crl.L.J. 1032 (Contra 99 Crl.L.J. 419 AP)
Notice not returned or delivered. Notice sent through registered post – neither postal cover nor acknowledgement returned – presumption is notice served. 1999 Crl.L.J. 329 AP.
Notice not served as garage closed. Notice not served as garage closed – maintainable. 1999 Crl.L.J. 949 (B) Raj.
Jurisdiction. Court within whose jurisdiction cheque was presented for encashment – has jurisdiction to entertain complaint. 1998 Crl.L.J.2402 Ker.
Deposit of amount – not enough. Deposit of amount by accused in account not sufficient to hold that that offence U/S 138 is not made out. Unless it is shown that such payment was made towards the amount payable under cheque. 1998 Crl.L.J.3525 (A) Raj.
Company not necessary. Company need not be added as accused (based on 1984 SC 1824) (should be added 1988 SC 1123). 1998 Crl.L.J.4758.
Mens-rea not necessary. 1999 Crl.L.J. 4361 (B) Bom.
No averments against directors – quashed. No averments or allegation against directors – nor material showing alleged offence was committed with consent of them – proceeding quashed against him. 1998 Crl.L.J. 4383 (Del) 4521 (AP).
Limitation. Period of 1 month for filing complaint will be reckoned from the day immediately following the day on which 15 days of receipt of notice expires. 1999 Crl.L.J. 1822 SC.
Discharge not maintainable. There is no provision for the summons cases to file an application for discharge under Sec. 245 Cr.P.C. that too after the witness have examined. 1999 Crl.L.J. 2236 Mad. (B).
IP not covered. Protection available under IP act does not cover proceedings under Sec. 138 NI Act. 1999 Crl.L.J. 2236 Mad. (A).
Recovery. Proper course should be filing a civil suit before civil court to recover money. 1999 Crl.L.J. 2136 Raj.
Abuse of process. Suppressing facts of pending revision, filing quash petition U/S 482 – Abuse of process of law. 1999 Crl.L.J. 2010 Mad.
Contempt. Filing petition to stall/stay judicial proceedings by suppressing material facts amounts to contempt of court. 1999 Crl.L.J. 2010 Mad.
Sec, 245 Cr, P, C. Section 245 Cr.P.C. is applicable to only warrant cases not for summons cases. 1999 Crl.L.J. 2010 Mad.
Notice – without time. Without mentioning any time in the notice if the complainant approaches the court after 15 days, the complaint is maintainable. 1999 Crl.L.J. 2010 Mad.
Notice in writing/fax. Notice through registered post as well as fax. Fax reached the same day – cause of action starts running – complaint filed after 15 days of receipt of registered post – not maintainable – should have filed within 30 days of receipt of fax notice. 1999 (2) CTC 354 SC.
Payment stopped/Account closed. Dishonouring cheque on ground that account was closed is consequence of act of drawer bringing his account to ‘Nil amount’ – such dishonour of cheque would attract Sec. 138 – Sec. 138 would become dead letter if instruction issued to bank to stop payment immediately after issuing cheque against debt or liability. 1999 (2) CTC 347 SC.
Documents of theft not necessary for 138. Documents relating to theft of cheque are held to be not relevant in criminal proceedings relating to dishonour of cheque. 1999 (2) CTC 298.
Complaint against insolvents – maintainable. Criminal prosecution against insolvents are maintainable, 1999 (1) CTC 687.
Accused – Power of Attorney not maintainable. Accused cannot appear through his power of attorney holder – Sec. 205 dispenses with personal attendance of accused – permitted through appear through counsel. 1999 (1) CTC 720.
Sec. 245 Cr.P.C. not maintainable after trial begins. After commencement of trial no discharge petition is entertain able. 1999 (1) CTC 527.
Sec. 256 Cr.P.C. Dismissal not warranted. Non appearance of complainant – acquittal hurriedly – no reasons stated in the order – disposal oriental orders condemned – orders set aside. 1999 (1) CTC 371.
Cheque as security – invalid. Cheque issued as security for advance amount – No liability subsisting on date of execution of cheque – prosecution U/S 138 will not maintainable. 1999 (1) CTC 6.
Unregistered firm. Complainant cannot be compelled to implead an accused that is unregistered firm. 1998 (2) CTC 282.
Cause of action arises only once. Once notice issued and accused failed to pay the amount within 15 days, the cause of action arose, and complaint has to be filed. No notice 2nd time can be issued. Any number of times cheque can be presented for collection, but notice only once can be issued. 1998 (2) CTC 462.
Partners not liable. Partners who are not responsible for day today affairs of firm need not be arrayed as accused. Since they are only sleeping partners, they are not liable to be tried. 1998 (2) CTC 548.
Demand of more amount than cheque. Statutory notice demanded more amounts then cheque is valid. 1998 (2) CTC 548.
Amendment. Descripttion of accused mentioned wronging complainant is allowed to amend the same. 1998 (2) CTC 372.
Return memo – Limitation. Return memo dated 26-12-1992 is received by holder in due course after ten days. Notice dated 11-01-1993 is valid. 1998 (2) CTC 282.
Public holiday. Cheque dated 22-04-1996 – Cheque presented on 22-10-1996, since 21-10-1996 is public holiday – cheque is valid. 1998 (2) CTC `165.
Stop payment – not a ground. Stop payment – no ground to hold that payees are not guilty. 1998 (2) CTC 165.
Legal heir – valid. Death of complainant will not terminate proceedings U/S 138 NI Act. Complainant’s presence not necessary – legal heirs can be impleaded. 1998 (2) CTC 647.
Time in notice – not necessary. Mentioning of any period in notice within which payment of cheque is to be made – not necessary. 1998 Crl.L.J. 2309 Raj.

Authorization to company – not necessary. Complaint filed by company – objection that no authorization given by company to director – plead rejected – The person who is in charge and responsible for conduct of the business of the company can file. 1998 I LW 354.
One month – Definition. Definition ‘one month’ in Sec.3 (35) of General clauses act to be followed and hence it cannot be restricted to period of 30 days – ‘one month’ – in Sec.142 refer to calendar month (Jan,29,30,31 X Feb.28/29). 1998 I LW (Crl) 264.
Allegations on partners must. To bring persons within the purview of Sec. 138 NI Act there must be an allegation prima facie disclosing of commencement of offence of directors or partners. 1998 I LW 24.
01/06/2003

04-01-2004
Holidays acceptable – Company not necessary M.D. enough - Plea that presentation of cheque about 6 months 2 days after its issue and complaint not sustainable – rejected. Intervening of period of public holidays on the day of expiry of cheque to be excluded Under section 25 – company functions through human agency. Hence, M.D., in individual capacity cannot escape from his liability – complaint maintainable. 1998 II LW (Crl) 6111.
Re-agreement – compensation – There was an agreement between parties hence section not attracted – plea rejected – time imposed and compensation to complainant granted. 1998 II LW (Crl) 621.
Good used/plea goods not good – stop payment – Acquittal of accused that communication to stop payment – acquittal set aside. – Having consumed almost entire materials, the stop payment instruction to bank, can under no stretch of imagination protect the respondent from liability U/S 138. 1998 II LW (Crl) 637.
Security – plea that cheques were issued only as security and unless the sale transaction of the property is completed the petitioner is not liable to make any payment – rejected. 1998 II LW (Crl) 640.

Section 245 Cr.P.C., not maintainable Under Section 138 N.I. case (finding) 1998 II LW (Crl) 640.
Deemed Notice – deemed notice can be constructed as receipt contemplated under Section 138. 1998 Crl.L.J. 3903. (Mad).
Abatement – Proceedings does not abate on death of payee – power agent is legal. 1998 Crl.L.J. 3870 (Mad).

Stop payment – Presumption under Section 139 in favour complainant – notice to stop payment would not preclude action U/S 138 by draw. 1998 Crl.L.J. (SC) 1397.
Silent partner – Complaint against person who is not responsible for conduct of business company – not maintainable. 1998 Crl.L.J.(Raj) 3525 D.
Jurisdiction – Acquittal on the basis of jurisdiction alone not proper. Complaint should be returned for presentation before proper court. 1998 Crl.L.J. (Ker). 2755 B.
Alternation – Incerstion of date can be presumed as inserted with implied consent of drawer – presumption not rebuttal – cheque not void. 1998 Crl.L.J. (Ker) 3228.
Section 20 – Suit on promissory note – signature admitted – pronote can be wholly or partly blank – dismissal not proper. 1998 Mad 23.

Limitation – Section 13 NIA – Notice served on 1 September – complaint filed on 16 September – complaint not prematured. 1998 Crl.L.J.559(A) Guj.

Endorsement - Endorsement not liable. 1991 MWN II 237.
10/01/2003 till this palmed

Civil suit cannot be stayed pending criminal prosecution – criminal cases can be stayed by civil court only rarely when compelling circumstances exist. 1996 II CTC 21. (SC).
Incorporation of recitals about chit transactions in promissory note is mandatory requirements – If any time fixed for payment than payment could be demanded only after that period. 1997 I CTC 284.
Section397-Revision-Neither second revision U/S 397 nor quashing petition can be maintained by unsuccessful person in revision before Sessions court. 1997 II CTC 567.
6 cheques – single complaint – valid. Dishonour of six cheques – single complaint –
maintainable. 1997 II CTC 567.
Power agent substituted maintainable – Company can be represented by person authorized afresh – Power agent can be substituted. 1997 II CTC 675.
Imprisonment alone to be suspended by High court but not both imprisonments and fine. 1998 L.W. (Crl) 239.
Holder in due course – Execution proved – legal presumption would arise that consideration was passed on at time of execution – claim that assignee was not holder in due course – No evidence – claim rejected. 1997 AIR Mad 1 (S.118 NT Act)
Notice unclaimed - has to be proved by complainant at the time of trial. 1993 I MWN 336 = 1998 SC 630.
Notice to firm enough – Complaint against the firm – Notice need not be sent each partner – to firm itself sufficient. 1998 Crl.L.J. 43 (B) AP.
Mere advance information not to present cheque without making arrangements for funds not valid. The notice must contain legal tenable reasons. Otherwise Section 138 NI Act will attract. 1998 Crl.L.J.10 (B) Guj.
Complaint against company – Allegation against directors not necessary. 1998 Crl.L.J. 10(C) Guj.
Charge against accused directors of company necessary in a complaint against company. 1998 I LW (Crl) 24.
Accused not entitled for documents but for copy of complaint alone 1998 I LW (Crl) 1. Karpagavinayam J.
Section 420 IPC can be clubbed. Section 420 Indian Penal Code can be clubbed with complaints filed Under Section 138 of NI Act. 1993 Crl.L.J. 2196.
Account closed – All cheque leaves should be returned otherwise closed Account is deemed to be alive. Clearly attracts Section 138 NI Act. 1996 Crl.L.J. 1816.
Presumption is that the cheque is issued to discharge debt – Accused has to prove contra. 1996 Crl.L.J. 681.
Date of issue immaterial. 1992 Crl.L.J. (P&H) 1044.
Enquiry Under Section 202 Cr.P.C. necessary. 1997 I LW (Crl) 411.
Manager of firm can file the complaint. 1997 I LW (Crl) 297 = 1992 3 Crimes 1094.
Jurisdiction to two courts – presented to one court in time is valid. 1997 MLJ (Crl) 288.
Legal notice given from branch office is also a place where cause of action arose. 1997 I LW (Crl) 205.
Power of attorney, payee or holder in due course can file the complaint. 1997 II LW (Crl) 637.
Enquiry is necessary before issuing process – detailed order should be made with reasoning. 1997 MLJ (Crl) 270.
Cheque returned – notice issued – case not filed within time – again same procedure is valid – continuing offence. 1997 MLJ (Crl) 525 (Kar) HC. Reversed 1998 CTC II SC 462.
Compounding cannot be done in 138 cases. 1996 Crl.L.J. 135 (Ker).
Money lender covered U/S 138 NI Act. 1996 I Crl.L.J. (AP) 636 (A).
Mens rea not necessary. 1996 I Crl.L.J. (AP) 636 (B).
Power agent can file a complaint. 1995 I Crl.L.J. 1102.
Company need not be added as party to the proceedings . 1995 I Crl.L.J. 1102 (followed AIR 1984 SC 1824 – Criminal case)
Averments against company not necessary. 1995 II Crl.L.J. 2306. Over ruled 98 LW (Crl) 24.
Accused can ask for discharge in Section 138 cases (finding Para 4). 1996 II LW (Crl) 690.
Consideration can be past, present or future promise to deliver goods in future is liable. 1996 Crl.L.J. (Guj) 3099 B (Para 10).
Signatures differ in acknowledgement card from cheque – plea rejected. 1996 Crl.L.J. (Guj) 3099 (B).

Entire body need not be written by drawer. 1996 Crl.L.J. (Guj) 3099 (C).
Proceedings against or for proprietor concern cannot be initiated. 1996 Crl.L.J. (Guj) 3099 (A).
Complaint can be filed at either place of issuance or dishonour. 1996 Crl.L.J. (Ker)
2395.
Burden of proof is on accused. 1996 Crl.L.J. (Mad) 3387. (A) (C).
Averments regarding jurisdiction not must. 1996 Crl.L.J. (Kar) 2264. (C).

Without signature of Advocate – notice is valid. 1996 Crl.L.J. (Kar) 2264 (A).
Notice to reasonably correct address is sufficient. 1996 Crl.L.J. (Ker) 1013.
Service of notice – deemed notice is sufficient. 1995 II MLJ 35 (SN).

Dismissed complaint cannot be taken back if reasons for absence not explained. 1996 I LW (Crl) 221.
Complainant absent hence dismissed. Can be taken back if the reasons explained (Against if reasons not stated). 1994 II L.W. (Crl) 761.
Burden of proof on the part of the accused. 1996 Crl.L.J. (Mad) 3387.
Burden of proof on the part of the accused. 1996 I LW (Crl) 320.
If notice given as not to present the cheque for collection before it’s presentation – Section 138 will not be attracted. 1996 I LW (Crl) 325. (SC). REVERSED 1998 SCC III 249 A.
Account closed can be taken for file. 1995 Crl.L.J. (Mad) 1882 (B).
Cause of action arose any number of times on the same cheque. 1995 Crl.L.J. (Kar) 1384.
Notice return as “Not found” – Notice not served hence demand not made, acquitted. 1995 2 LW (Crl). Arumugam J.
Discharge of accused – entitled for discharge on merits in 138 case – remanded. 1995 I LW (Crl) 277. Rangasamy J.
Limitation for representation – If the return is by time limit it deemed to be with in the custody of court. 1995 I LW (Crl) 300.
Plea of failure to mention date of dishonour in statutory notice is rejected. 1995 I LW (Crl) 264. Janarthanam J.
Without impleading company as accused – not maintainable. Section 319 Cr.P.C., for Impleading any other person as co accused will not have effect of curing the infirmity.. 1995 I LW (Crl) 132. Rangasamy J.
Cheque is not negotiable after being dishonoured, it cannot be endorsed again. 1989 I LW 401.
Refer to drawer – Insufficiency of funds, exceeded the arrangement – questions involved determination on evidence without having come on record it will not be appropriate for the petitions to invoke the inherent powers of quash. 92 MWN II 184.
Account closed can also be taken for file. 1994 LW (Crl) 663.
Account closed will not attract Sec. 138 of NI Act. 1991 LW (Crl) 576.Contra
Account closed etc., has to be proved at the time of trial cannot quash at this stage – AP High court. 1993 MWN (1) 251.
Power of attorney can file complaint U/s 138 NI Act. 1994 TNLJ 42.
Signature difference – Merely because of some part was written by somebody other than the signatory, the cheque could not be said invalid. AIR 1993 Kar 334.
Refer to drawer. Amounts to insufficient funds – Limitation falls on holiday – it can be filed next working day. 1994 LW (Crl) (1) 51.
There is nothing in the 138 that the payee alone can take action. Holder in due course also can take action. 1994 TNLK 30.
Any one or more or all partners with firm may be prosecuted . 1994 I LW (Crl) 262. Page 263 (6th Para end).
Absence of any averment about the power of attorney, he cannot file the complaints. 1994 I LW (Crl) 337.
Company should also be added as party. 1988 SC 1123.
Firm should be arrayed as part otherwise the Section 141 is not complied with. 1994 I LW (Crl) 135.
Post Anti date cheques are valid – Post dated cheques deemed to be drawn on the date it bears. 1994 TNLJ SC 8 = 11994 TNLJ SC 30.
Praying for issue of summons under 420 IPC in the course of 138 trial – rejected. 1994 LW (Crl) 55.
Dismissed for default – On the ground of absence of complainant, again cheque presented – again same procedures – complaint can be taken for fresh cause of action. 1994 LW (Crl) 53.

Power of attorney agent is virtually the payee himself or holder in due course. 1994 LW (Crl) 34.
Cheque can be presented any number of times within its validity – There is no infirmity in it. 1993 LW (Crl) 627.
“For the discharge in whole or in part of any debt” – Absence of such averment the complaint is ought to be quashed. 1993 LW (Crl) 600.
Acquittal Under Section 256 of Cr.P.C., - Valid, if no reason is assigned for the absence of the complainant – revision dismissed. 1992 (2) MWN .
Stop payment will not affect the case before it is proved that sufficient funds are in account. 1992 (2) MWN.
There is no bar for presentation of the cheque at a later point of time also and if it is was dishonoured certainly the offence is made out. 1992 MLJ (Crl) 618.
Sole proprietary concern – impleading of the company is not necessary – plea that failure to implead the company as accused will vitiate the prosecution, rejected. 1993 LW (Crl) 273.
Cheque presented to bank for collection on various dates and returned as “insufficient funds” – plea that 142 contemplates only a single cause of action – rejected. 1993 LW (Crl) 270.
Expiry of 45 days time – Bar of limitation where the complaint is filed after expiry of 45 days from the date of return of the notice. 1993 LW (Crl) 105.
Refer to drawer – This and other contentions involved on evidence to be adduced and the matter cannot be decided on a petition to quash the proceedings. 1992 LW (Crl) 536.
Payment stopped – Duty of the complainant to include necessary averments as would disclose an offence on a reading of the complaint – failure to make the same – proceedings liable to be quashed. 1992 LW (Crl) 367.
Payment stopped – Allegations that the accused did not have sufficient funds will bring the complaint under Section 138. The allegations have to be proved only at the time of trial and proceedings cannot be quashed at this stage. 1992 LW (Crl) 307.
Evasive of notice – The deliberate evasion of receipt of registered notice would be a constructive service. 1991 LW (Crl) 576.
Proceedings in 1st occasion of dishonour, if not taken it is not a bar of limitation of the same subsequently. 1991 LW (Crl) 481.
Notice in writing is need not necessarily be only by a registered post and it can be as well as by telegram or by a letter. 1991 LW (Crl) 468.
Proprietor concern – Proprietor himself is enough for prosecution – His concern need not be added as party. 1991 LW (Crl) 347.
Company should be added – Unless the company is made an accused the M.D. and others cannot be made as accused. 1991 LW (Crl) 513.
Suit based on a promissory note instituted by a nationalized bank claming interest at the rates higher than the rate mentioned in promissory note – Interest of higher rate. Held can be allowed, only when it is agreed to by the debtor – Directives of Reserve bank to the nationalized bank not relevant. 1990 I LW. 1. Syndicate Bank, Pollachi Vs. Muthaiyan and another.
Imperfect notice – cheque amount not mentioned in notice - Notice was for loan amount – Not for cheque amount – Loan amount and cheque amount is different – demand for amount covered by bounced cheque is absent in notice - demanding other than cheque amount will not make the notice invalid – but demand for cheque amount should be made clearly. 2003 (4) CTC 252 (SC)..
Claming more than cheque amount in notice – not invalid – Claiming Rs.300/- i.e., cost of notice other than cheque amount will not be ground for quashing the complaint. 2003 (4) CTC 76.
Discharge maintainable in 138 cases – It is true that discharge does not arise in a summons case. But even if the petitioner prays for discharge in such cases we cannot give a restrictive meaning to the word discharge, instead we can interpret if as dropping the proceedings against them. (As charges could not be framed in summons cases, the question discharge does not arise). 2003 Crl.L.J. 4373.

Cheque limitation – Calendar month definition – date of cheque cannot be excluded. 98
Crl.L.J. 4330.
Initial defects in complaint cannot be amended. 2000 (1) Crimes 113 = 83 SC 67.

Accused managing director did not let in evidence – rebuttal let in evidence – not rebutted. 2003 (4) CTC 628.
Stop payment – Mere stop payment will not absolve the offence. 2003 (4) CTC 628.
Relationship – Relationship between parties in irrelevant. 2003 (4) CTC 628. (Contra to) Notice to not to present cheque for collection – Section 138 will not attract. (1992 (2) SCC 739 (Para 22) – Negatived.
Period of offence – The transaction took place in 1993 – Section 138 as stood at that time would be applicable to present case. 2003 (4) CTC 628.
Sentence – Sentence – double cheque amount to be payable within one month in default 6 months simple imprisonment. 2003 (4) CTC 628.

EVIDENCE ACT

Will - Attestation must be proved – to mark document. Factum of execution of will is not sufficient in law unless due attestation of will is proved – Documents required to be attested in law cannot be used as evidence unless attestation is proved. 1995 (2) CTC 476.
Benefit of doubt – infavour of accused. Standard of proof – Accused cannot be expected to prove defense strictly – when accused is able to probablize his case, then grave doubt is created in prosecution case – acquitted. 2002 (3) CTC 99.
No plea no evidence – No evidence no plea. 2002 (2) CTC 598. = 1990 MLJ (1) 127 = 1992 MLJ (1) 188.

Section 85 - Power of attorney should be notarized for admissible in evidence. AIR 1950
All 524.
Mere production of account books – is not sufficient to establish transactions. 2001 (2) CTC 736. (Sec.34).
Deliberate suppression of account books. The defendant discharged burden under section 118 of NI Act. 91 II MLJ 183.
Account books to be proved each item. Mere proof of the existence of certain entries in books is not sufficient – law requires proof not only of account books but also of each item. 97 (3) LW 662. (Sec.34).
Account books to be proved by party relies them. It is for the party who puts forwards accounts to explain them in such a way - Mere account books without more does not prove anything. 97 (1) LW 1 (Sec.34).
Mere production of account books not sufficient to charge liability. 92 (1) LW 262.
Account books. Account books by themselves not sufficient to charge any person with liability (Negotiable instrument – pro note case). 100 LW 702.
Section 73. Court need not have taken trouble of comparing signature – if it is not
pleaded by parties. 2001 CTC (3) 408.
Section 3 – Court cannot compare thumb impression. 2001 CTC (3) 52.

Section 47 & 67. Ordinary mode if proving the documents is calling the person who executed the documents. 96 MLJ 730 SC.
Mere proof of handwriting would not prove contents. 95 II LW 74.
Marking of document will not prove the contents. 96 II LW 637.
Abstained witness adverse inference. If such a party abstains from entering the witness box if must give rise to an inference adverse against him. 2001 I LW 178.
Section 63 – Copy of document procedure – Party should prove that copy was made from original and compared with original to admit copy as secondary evidence. 2001 (1) CTC 12.





CRIMINAL PROCEDURE CODE
Sections 156 & 174. Failure of mention name of witness in first information report and inquest report as one who witnessed occurrence - cards serious doubt in presence of witness at time of occurrence. 1997 MLJ (Crl) 496.
Section 125. Maintenance in arrears for one year alone can be claimed. 1997 I LW (Crl) 213.
Section 397(3). High court can invoke jurisdiction under Section 482 in spite of bar under Sec. 397 (3) in exceptional cases. 1997 MLJ (Crl) 710.
Section 202 -Enquiry in Section 202 necessary (reference for Sec. 138 NIA). 1997 I LW (Crl) 411.
Section 256. Complaint cannot be dismissed – case ought to have been passed over – called after lunch before final orders passed. 1997 II LW (Crl) 742. K.P.Sivasubramaniam J.
Section 203. In a revision filed against an order of dismissal under Section 203 Cr.P.C., the session’s judge need not give notice to the accused. (also see. 1997 2 LW (Crl) 773). 1983 LW (Crl) 212.

Section 202. Accused not entitled for documents but for the copy of complaint alone in (Sec.138 NIA) private complaint. 1998 I LW (Crl) 1.
Section 239. Section 389 (1) & (3) – sentence of imprisonment alone to be suspended by High court but not both imprisonment and fine.
Section256- If the presence of complainant isn’t necessary the case shall be adjourned. 1998 Crl.L.J. SC 856.
Accused can ask for discharge. 1996 II LW 690.
Endorser not liable. 1991 MWN (2) 237.
Section 126(2) . Exporter order can be passed. 1997 1 LW (Crl) (SN).
Section 126(2). Ex-party order in Maintenance Case can be passed. 1997 MLJ (Crl) 332.
Section 125. Muslim husband has to pay maintenance, and it is immaterial that he can marry again under person law. AIR 1987 SC 1103.
Section 125. Overrides the personal law wife includes divorced Muslim woman who has not remarried. (Shah Bana Began case). 1985 SC 945.
Section 256. Court cannot dismiss the complaint just like. 1988 MLJ (Crl) 170 . 1998 MLJ (Crl). 338.
Section 205. Accused/power agent/not maintainable. Accused cannot be allowed to appear through power of attorney – Section 205 permits him to appear through counsel – personal appearance will be dispensed with. AIR 1999 SC 1385.
Section 245(2). Applicable for summons case/private complaint. 1991 SCC 217. 92 SC 2206 and 92 Crl.L.J. 3799.
Section 245(2). Can be filed in summons case. 1995 I LW (Crl) 277.
Section 245(2). High court is not entitled in setting aside the order of discharge. 1997 SCC (Crl) 1184 (B).
Sections 407, 482 and 483. Transfer of cases. Grounds for transfer – person arrayed has reasonable cause to apprehend that court is not from bias . b) Magistrate is functioning as month piece of PP and in judicial manner. c). Procedure adopted by JM illegal, d). JM is biased towards PP. e). JM makes observation creating bear of fair trial, f). failure to adjourn case in interest of justice. 1999 (2) CTC 418.
Section 91 - Send for – Plea rejected. This court has already cautioned against undertaking a roving enquiry into the pros and cons of the case by weighing the evidence or collecting materials as if during the course or after trial vide. (79(3) SCC 4). 2000 (3) CTC 55 SC.
Section 125. Wife employed – valid for maintenance. Meaning of living. Even it the wife is employed she can claim for maintenance. 2000 I MWN 13. 97 II LW (Crl) 572.
Section 204. Certified copy of complaint – Accused entitled. Right of accused to obtain private complaint copies of complaint on receipt of summons but before his appearance in court – accused is entititled to. 2001 (1) CTC 24.
Section 125. One month or on payment – respondent shall be released. Magistrate cannot impose sentence continuously on respondent in custody one month or payment time which ever is sooner can be released. The petitioner has to come again for the same remedy if payment not made. 99 Crl.L.J. 5060 SC.
Section 73. Case can be spited. If the NBW is not possible to execute on the other accused, the appearing accused can ask for split of the case. The prosecution need not file any application for that. 99 Crl.L.J. 763.
Section 420.IPC Default in paying installments – 420 will not lie. Accused entering into finance agreement with complainant for purchase of dental chairs and committing default in repayment – complaint not making out fraudulent or dishonest intention – quashed. 2001 (1) CTC 624.
Section 478. Limitation. Under Sub-section 2 share the offence for which the accused is charged is punishable with fine only, the prosecution must be lunched within 6 months from the date of commission of the offence – within one year imprisonment, limitation is one year – Between 1 and 3 years imprisonment limitation 3 years – other imprisonments no limitation is prescribed. AIR 2000 SC 297.
Section 252. Questioning – not necessary. In summons case questioning about sentence with accused not necessary. U/s 1138 NIA. 2001 (3) CTC 25.
Section 421(1). Mode of attachment of property. Mode of recovery by attaching or sale of immovable property U/s 421 (1) Cr.P.C., by issuing distress warrant.
Section 482 = Section 378 I.P.C. Vehicle can taken as per HP terms. Motor vehicle purchased by complaint on HP agreement. As per HP terms owner empowered to re-possess vehicle in case if default – valid. 2001 (4) CTC 102.
Section 313 & 294. Not marking documents as per law – illegal cannot looked into. Documents marked without examining authors – objected by accused – documents marked without consent of accused – procedure as per order by Govt vide G.O.Ms – No.258 (Courts) dt. 08-02-1993. Not marking documents in such fashion illegal – court cannot look in to documents as contents not proved. 2001 (4) CTC 594.
Section 482. Criminal proceeding against family members invalid. Before issue process criminal court has to exercise great deal of caution – It is serious matter as far as accused is concerned – when complainant lodges complaint. 2000 (2) CTC 107.
Section 245 – Discharge pending is not a bar for quash. Petition U/s 245 discharge pending will not preclude the HC from quashing U/s Section 482 Cr.P.C. 2002 (2) CTC 107.
Section 205. Can be filed for 1st appearance in 138 Cases. Magistrate can use his judicial discussion and dispense with personal appearance of accused even in his first appearance and record plea of counsel – such discretion to be exercised in rate instances where due to geographical distance or physical condition of accused or other good reasons. 2001 (3) CTC 698 SC.
Section 391. Additional evidence. Additional evidence at the time of appeal – by complainant – no filling up if lacuna – allowed. 2020 (3) CTC 161.
Section 125. Maintenance. Wife living separately – husband refers to set up separate family – wife entitled for maintenance. 1997 (1) CTC.
Section 125. Paternity test – not matter of course – oral and documentary evidence enough. Proof of paternity – maintenance proceeding is summary proceedings in nature hence paternity could be proved only by way of oral and documentary evidence – blood test is not matter of course. 1997 (2) CTC 763.
Section 258. Petition to stop proceedings – not maintainable in cheque cases. 1997 (2) CTC 218.
Partner or not in firm is matter for trial – U/s 138 case. 1997 (2) CTC 293.
Section 91. JM cannot compel accused to produce documents U/s 91. Power of magistrate to summon for production of thing person – Inapplicability to accused persons – Power U/s 91 cannot be exercised against accused to produce any incriminating materials. 1997 (3) CTC 196.
Section 204 & 245. Section 204 cannot be revoked after examination of witness begins. Section 245 not maintainable in summons cases – applicable for warrant cases. 2002 (4) CTC 335.
Section 200 & 201. Judicial process should not be used as instrument of oppression or needless harassment – private complaint should not be allowed to be use as means to wreck personal vengeance or vendetta. 2003 (1) CTC 467.
Section 200. Private complaint – when can be entertained. Private complaint can be entertained only when complaint to police is either refused to be registered or after entertaining complaint police has referred the case as mistake of law of fact or undetectable case or case of civil nature – Magistrate cannot usurp jurisdiction of police by entertaining private complainant at the first instance without prior complaint to police. 2003 (2) CTC 270.
Section 473. Section 473 is not applicable for extension of time for filing for any other acts. 2001 (1) CTC 725.

Section 311. Defects cannot be cured by marking document in belated stage. Prosecution cannot be allowed to fill up lacuna by filing petition U/s 311 and examine a witness in support therefore – defects cannot be cured by marking of a document at a belated stage and examining witness thereof. 2000 Crl.L.J. 624.
Section 311. After closure of evidence – not allowed to fill up lacuna. Application filed after closure of evidence on the side of complainant – prosecution cannot be allowed to fill up lacuna – as if caused prejudice to accused – defects cannot be cured at belated stage. 2002 (2) CTC MWN 222.
Section 311. Petition after arguments – careless prosecution – not permitted. Petition filed after the evidence was closed and after the questioning of the accused and arguments were addressed – failure of prosecution to conduct the case with not a ground to rectify such latches. 1991 LW (Crl) 42.


9/12/2004
Averments – Complaint against partners firm – Averments in complaint that accused at relevant point of time were in charge and responsible for the conduct of its business –In absence of said requisite averment complaint, offence against accused can not be made out – Discharge of accused proper- 2004 Crl.LJ.-4249
Retirement of partner from the firm – petitioners ceased to be partners of firm even before issuance of dis honoured cheques – date of dissolution not mentioned in reply notice - public notice as contemplated u/s 72 0f Partnership Act not given – liable to as partners – mater for trial – cant quash – 2004 Crl.LJ- 302 NOC.
Money lender – Complainant claimed to be a money lender but not produced a license for the same – No legally enforceable debt of accused – acquittal of accused proper. 2004 Crl.LJ-4019

Drawer of cheque alone liable – Cheque issued by one of the directors of company in which petitioner is managing partner – Company has to pay some amount to complainant – Petitioner is not liable for the cheque not issued by him. 2004 Crl.LJ-4079
Account books not produced – it cannot be said that factual basis for raising presumption had been established – complainant can be said have failed to discharge initial burden that there was legally enforceable debt – dismissal of complaint proper. 2004 Crl.LJ 4107

Trial court to decide the liability of a partner – whether any or all directors or partners were really in-charge of and responsible for conduct of business – it is not duty of high court to cause any interference under any pretext even if prima facie on complaint anyone is made an accused being director or partner. VKJ – Crl.LJ – 4326
Retired director – fact about resignation not known to complainant – proceedings cannot be quashed without giving opportunity to him- matter remanded – 2004 Crl.LJ – 4389
Power of attorney filed complaint in name of and by payee firm and it is in writing – complaint not signed by complainant – eligibility criteria satisfied – firm could authorize any person to act for and on behalf of firm – complaint filed by POA is proper and tenable – no illegality in taking cognizance of offence – 2002 Crl.LJ 261 AP not good law in view of AIR 2002 SC 182 = 2002 Crl.LJ 266 – 2004 Crl.LJ – 4119

2 Like

Amit Kumar Jhawar (Director)     13 December 2013

please let me know when Cheque is bounced after winding up Negotiable Instruments Act, 1881, S.138  is applicable and if applicable how to defend the caes

 

Cheque has been bounced due to block of account by bank reason company is in liquidation.

srikanth (owner)     07 February 2014

drawee has deposited a cheque in his bank dated 25-04-2008 and it reached the drawer bank . The drawee has not produced any evidence of his deposit date. the drawer claims that it has reached after 25-04-2008, that is after 6-month period. the only evidence drawer has is the dishonoured date in his bank statement.

 

 

judge says dishonoured date cannot be treated as presented date? then how should i (drawer) prove that it has infact presented only after 25-10-2008

rahul (md)     29 November 2014

sir,

thanx for the support ,u really have a good collection for all.

i wana to know do u have any authority in that i can prove that execution of cheque is different from mere signature on the cheque.

i have a case in that complainant complained that i have executed a cheque on a specific date rather iwas out of the town on that date

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     30 November 2014

There are many technical lapses in any cheque case and you should take benefit of them to win the case.

SHAMMI GARG   26 August 2015

Hi Mr.Raj Kumar Makkad ji Sir i want your opinion regarding notice against Cheque bounce case My freind Sumit had received a notice for payment against bounced cheque of Rs.1 Lac. the case is A person Mr.Vishal send a notice through advocate that sumit's father had taken rs.1 lak in cash against security cheque only.but after 20 days sumit father expired they have no information about rs.1 lak, but Vishal want to claim money from him on behalf of security cheque. what is the solution of this. please give your valuable opion. Thank you Shammi Garg Accountant Patiala-9872793816

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