138 b ni act in hindi
It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the blog shall not be liable for any act or omission based on this note].How to file a cheque bounce case its procedure -- Step by step guide for new lawyers
Commercial globalisation has resulted in giving a big boost to our country. With the rapid increase in commerce and trade, use of cheque also increased and so did the cheque bouncing disputes. Section casts a criminal liability punishable with imprisonment or fine or with both on a person who issues a cheque towards discharge of a debt or liability as a whole or in part and the cheque is dishonoured by the bank on presentation.
Apart from civil liability, criminal liability is sought to be imposed by the said provision on such unscrupulous drawers of cheques. However, with a view to avert unnecessary prosecution of an honest drawer of the cheque and with a view to give an opportunity to him to make amends, the prosecution under Section of the Act has been made subject to certain conditions. These conditions are stipulated in the proviso to Section In criminal law, commission of offence is one thing and prosecution is quite another.
Commission of offence is governed by Section of the Act. Prosecution is governed by Section of the Act. It envisages service of a notice upon the drawer of the instrument calling upon him to make the payment covered by the cheque and permits prosecution only after the expiry of the statutory period and upon failure of the drawer to make the payment within the said period.
Negotiable Instruments Act, Section Dishonour of cheque for insufficiency, etc.
जाने झूटे चेक बाउंस केस धारा 138 N.I. एक्ट केस कैसे जीते
Provided that nothing contained in this section shall apply unless —. Classification of Offence. An offence committed under Section is a non-cognizable offence a case in which a police officer cannot arrest the accused without an arrest warrant. Also, it is a bailable offence. Further steps laid down by way of the proviso are distinct from the ingredients of the offence which the enacting provision creates and makes punishable. Thus, an offence within the contemplation of Section is complete with the dishonour of the cheque but taking cognizance of the same by any court is forbidden so long as the complainant does not have the cause of action to file a complaint in terms of clause c of the proviso read with SectionDashrath Rupsingh Rathod v.
State of Maharashtra9 SCC Conditions precedent for constituting an offence under S. There are three distinct conditions precedent, which must be satisfied before the dishonour of a cheque can constitute an offence and become punishable. It is only upon the satisfaction of all the three conditions mentioned above and enumerated under the proviso to Section as clauses ab and c thereof that an offence under Section can be said to have been committed by the person issuing the cheque, MSR Leathers v.
Palaniappan1 SCC The sentence prescribed under Section is up to two years or with fine which may extend to twice the amount or with both. What needs to be noted is the fact that power under Section 3 CrPC to direct payment of compensation is in addition to the said prescribed sentence, if sentence of fine is not imposed. Kanchan Mehta1 SCC Compounding of offence [recording of compromise between the parties].
Section makes offence punishable under the provisions of NI Act compoundable. If the original complainant comes to the Court and says that he is withdrawing himself from prosecution on account of compromise and he has compounded the matter, then the conviction and sentence have to be set aside. No formal permission to compound the offence is required, Rameshbhai Sombhai Patel v.Magic keyboard ipad pro 12.9
Though compounding requires consent of both parties, even in absence of such consent, the court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused, Meters and Instruments P Ltd.
Quashing of complaint by the High Court under S. If an accused wants the process under Sections and to be quashed by filing a petition under Section CrPChe must make out a case that making him stand the trial would be an abuse of process of court, Gunmala Sales P Ltd.Deswal vs.
Virender Gandhi] In this case, the Supreme Court held that Section of the Negotiable Instruments Act as amended, shall be applicable in respect of the appeals against the order of conviction and sentence for the offence under Section of the N.Udacity devops capstone project github
Act, even in a case where the State of Gujarat ]. The Supreme Court has held that subsequent filling in of an unfilled signed cheque is not an alteration and even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
The Supreme Court has observed that a complaint under Section of the Negotiable Instruments Act is maintainable when there is dishonour of cheques issued under and in pursuance of the agreement to sell. Though an agreement to sell does not create any interest in immovable property, it nonetheless constitutes a legally enforceable contract between the parties to it, the court added.
In this case the three cheques issued by the accused were presented by the complainant, and after they were dishonoured, a notice was issued to the accused on Thereafter, these cheques were again presented, which were dishonoured again. The complainant issued a statutory notice on The Apex Court held that a 'cheque bounce' complaint filed based on the second statutory notice issued after re-presentation of cheques, is maintainable.
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Dasari Deepthi]. Kishan Rao vs.Data e ora dellevento di fortnite
Shankar Gouda. Sunitha vs. State of Telengana]. The Supreme Court, in this case held that, that a fee amount claim by a lawyer based on percentage of subject matter in litigation cannot be the basis of a complaint under Section of the Negotiable Instruments Act.
State of Kerala]. Harihara Krishnan vs. Thomas ]. It was also clarified that the general concept under Cr. C that cognizance was taken against the offence and not against the offender was not appropriate in prosecution under NI Act.
The complainant in the case was issued a cheque, which was signed by one Harihara Krishnan. Ashok Kini. Share This. Your free access to Live Law has expired. Premium account gives you:.Usane muze ab tak paise nahi diye hai. Hello sir namaskar. Main up district unnao se hoon. Mera kaam udisha men ek contrector jo ki government hospital men Doctor hai k thrue chal raha tha chal raha tha aur usne rs dene k liye court agreement kiya tha aur aj 7 months ho gaye usne nahin diya hai.
Sir please suggested. Sit ji 18 Nov ko notice bheja gaya mujhe aur january me case file hua abhi tak koi samanb nahi aaya fariyaadi ka aur mera jitna bhi lena dena tha bank transactiin me clear hai aur maine usko faaltu hi de rakhe hai sir ab jult chal raha hai kya main ye court me bol sakta hu ki notice bheja hi nahi gya mujhe aur kta ab bhi countet case ya uske khilaaf fir ho sakti hai chaque miss use k liye pls batage mera aur fariyaadi k lene dene ki sabhi teanction hai mete pass jo ye saabit kar degi ki uska mere ko kuch nahi dena mete sign iye hue blank chaque usne altratiin kar khud bhare hai meri germojudagi me pls samaadhan bataye sir.
A lot of thanks for give the legal advise to all public Sir, i am electrical contractor in N. Project Singrauli M. Sir, A lot of work complited by us in NCL projects work complited with extra work in year revised estimate not sanction to til date project send revised estimate for sanction at head office singrauli 3 timrs but revised estimate file not come head quarter to project aporoximate our 20 lakh amount balance for payment from and other project bill has been completed we request please deduct Coal mines provident fund from our bill and clear my bill but ncl management not paid to to balance amount this is balance Rs.
Sir maine 2 saal pahle kisi ko paise diye the or usne muje 1 cheq diya the but usne baad mai apna account band kra diya….Domaine castera jurancon 2015
Sir ji Namaste ye bataye ki mujhe legal notice mil gya lakin Maine fariyaadi ka pura paisa de diya lene den ka abbot hai mere pass fariyaadi ne 2 lakh ki mang 6 lakh apni marzi se chaque gar liya chaque pe sirf mere sign the usne ye jhuya case liya hai court me main ye bol sakta hu ki usne notice bheja hi nahi hai ya usne main jhuya case karne k liye koi counter case ya police first kar sakta hu kyuki vo bol raha hai 6 lakh usne cash diya hai jab ki mete pass uske paise diye hue aur mere dobara vapis diye hue k pakka a bit hai pls bataye usne bhi case ya first ho sakta hai usne 5 lakh dene ka koi bhi abbot nahi hai.
Sir ji Namaskaar pls ye bataue kya Negotiable act govt khatm kar rahi hai aur kya ye khatam ho jaayega matlab jo new case hai vo dissmiss honge or jinka juridiction ho gya hai unka kya hoga pls bataye. Sir Maine ek dost se 1 lakh re liya online banking se or 2 month me Maine usko 1 lakh 50 hazar with interest vapis kar diya online baking se phir bhi usne mujhe chaque vapis nahi kre vo idhar udhar k bahan bane laga or vo civil summary suit kr raha hai pls bataye main bank transaction dhika ke abbot deke case me Bach sakta hu kya kya usko bhi kuch sabit krna hoga pls sir margdharshan kre.
Sir maine kisi se 1 lakh rs liye the jan me usne mere sign kre hue 3 chaque le liye or unme se 2 chaque 4 -4 lakh matalb total 8 lakh bgarke laga diye or vo bounse ho gye mere pass babk transactiin hai usne mujge 1 lakg diya tha or maine usko vapus 1 lakh 93 hazar bataz samet vapus kre hai mujhe ye batye civil case ki dhamku de raha hai vo ti nain civil case mw kta kr paaunga meri ab vakil karne ki bhi hasiyat nahi hai agar main case haar gya paise kha se dunga mere pass ghr gaadi kuch nahi hai sir pks pks batage vo chaque bhi usne khud bhare hai sir.
Sir maine ek bande se furniture ka 1. Lekin us bande ne mujhe pakke bill nhi diye. Sirf estimate par details di jisme rate me differences tha. Uske baad wo mere ghar se meri anupasthiti me lad jhagad kar meri patni se mera sign kiya hua check le gaya or use 50, ka bounce karwa k mere par me case karwa diya. Main kya kar sakta hu sir. Plz help. Sir maine kisi ko rupes diye the or yadi vo joint account cheque diya tha or vo apna naam account se hatwa leta h to kya m case kar sakta hu sayad ka banta h case suggest me.
Hello Sir Maine ek ladke se 3 lakh rupay lene the. Usne cheque diye par sare bounce ho gye. Maine advocate se legal notice bhijwaya par use recive nahi hua. To kya wo ladka ye kah kar bch skta hai ki mere pass to notice aaya hi nahi. Sir Mai parivadi hun sir Mera ni ka kesh adesh ke kareeb ja raha hi sir Cort ne paise aur saja ka adesh Kar Diya sir yadi muljim aange apeel nahi karta jel Chala jata hi to Kya mujhe paise nahi milenge sir jabkee uske naam par proparty hi wo diwaliya nahi hi khasre ki copy Maine Cort me jama Kiya hi sir Kya ho sakta hi.
Sir Mai parivadi hun sir Mai agar trayal Cort se Jeet jata hun tab aroopee sesan Cort me apeel karta hi aur wonha bhi har jata hi tab usko high Cort me Jane ki adhikarita hogee Kya ya fir usko di gai saja bhugatnee hogee aur woh dusree apeel nahee Kar payega case ni ka hi.Offence by Company.
The complaint is not maintainable. Defect in complaint can not cure by arraigning company at a later stage. This is because notice of demand has not served on said company. Rebuttal of presumption. Complainant alleged that he gave a hand loan of Rs. However cheques has given against and it was dishonored.
Hence respondent challenging said transaction through cross-examination of the complainant. Complainant though stating that he had withdrawn said amount from his bank accounts. Besides, he did not produce the account statement. There has no entry found in respect of said loan in accounts maintained by him. However the complainant also admitted that he has not submitted Income tax returns. Hence complainant failed to prove the foundational facts of his case. Further, complainant admitting that he had invested certain amounts in stocks and shares with one broker.
Besides, suggestion given that he was doing transactions with said broker through respondent. However defence of respondents that said cheques issued towards security in respect of other transactions appear to be probable.
So, the cheque cannot be said to be issued towards the discharge of legally enforceable debt. Therefore, order acquitting respondent is proper.
Cheque issued for repayment of the borrowed amount was dishonored for want of sufficient funds. However, the accused did not step into the witness box to state that he had not signed the cheque. That, the handwriting expert opined that signatures on cheque were not of accused.
Cheque Bounce case- NI Act Sec 138
But it was only opinion and not conclusive. However, the Accused also failed to explain how cheque came into the hands of the complainant.Section of the Negotiable Instruments Act, provides for a punishment if a person who has issued a cheque is unable to clear the cheque and the said cheque gets dishonored. A criminal case is made against the person who had issued the cheque drawer for issuing a cheque and fraudulently not having sufficient funds in his account or for a stop payment direction to the bank.
The maximum punishment in such cases is upto 2 years imprisonment, or fine amounting to double the cheque amount, or both. The intent of the legislature behind such an offence was that if a person has issued a cheque for payment to somebody, in that case he should respect such action and if he fails to make the payment due to insufficiency of funds then he would be criminally tried.
Dishonour of cheque for insufficiency, etc. Provided that nothing contained in this section shall apply unless—. On a simple reading of the above section, we can understand from the said provision that a legal fiction has been created that the person who had drawn the cheque is presumed to have committed an offence under the act in the said circumstances.
On this aspect, the Supreme Court has observed in the case of State of A. If the rule itself provides a limitation on its operation, the consequences flowing from the legal fiction have to be understood in the light of the limitations prescribed. Thus, it is not possible to construe the legal fiction as simply as suggested by Mr Lalit. A penal provision created by reason of a legal fiction must receive strict construction. See R. Kalyani v. Janak C. Sareen  Such a penal provision, enacted in terms of the legal fiction drawn would be attracted when a cheque is returned by the bank unpaid.
Such non-payment may either be:. Before a proceeding thereunder is initiated, all the legal requirements therefor must be complied with. The court must be satisfied that all the ingredients of commission of an offence under the said provision have been complied with.
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Will anybody advice me that I had deposited two High value Cheques with my Bankers but were returned due to some reason. I sent a lawyer notice in time to the issuer of Cheque by Speed Post to return the Cheque amount to me within 15 days from the date of receipt. I have lost the original returned dishonoured cheque alongwith original cheque return memo which is mandatorily required at the time of filing Sec NI Act case.
Can I file Sec case in Court alongwith xerox copy of Original Cheque and, Cheque Memo alongwith filing Original Complaint lodged with my local area Police Station regarding lost complaint of 2 high value Cheques and Cheque return Memo whether there is any judgement of any higher Court which can help me in my case which I may require at the time of filing the case against the Cheque issuer.Explanation I. Electronic cheque e-cheque is the image of a normal paper cheque generated, written and signed in a secure system using digital signature and asymmetric crypto system.
Simply said an electronic cheque is nothing more than an ordinary cheque produced on a computer system and instead of signing it in ink, it is signed using the digital equivalent of ink.
Dishonour of Cheque – Section 138 of the Negotiable instruments Act
After the coming into force of The Negotiable Instruments Amendment And Miscellaneous Provisions Act,legal recognition has been accorded to e-cheques and they have been brought at par with the normal cheques. Section describes the above ground of insufficient funds in the account of the drawer of the cheque in the following words:. The amount of money standing to the credit of the account of the drawer on which the cheque is drawn is insufficient to honour the cheque, or.
Some of theses grounds are:. To attract the provisions of section NI Act, the cheque should be presented with the bank on which it I drawn- If the cheque is not presented to the bank on which it is drawn, then provisions of sec would not be attracted.
If bank on which the cheque is drawn is not a clearing member of the Reserve Bank of India — unpaid return of the cheque would not attract section It has been repeatedly held by courts that manifest dishonest intention of the drawer resulting in dishonour of the cheque would lead to prosecution under section Negotiable Instruments Act regardless of the actual ground of dishonour.
Section of Negotiable Instruments Act says:. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of section is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time.
This has to be averred as a fact and there is no deemed liability of a director in such cases. Supreme Court has also held that for the directors of the company to be made liable for an offence under secthe complaint must contain specific allegations against directors as to how directors are in charge and responsible for conduct of business of company.
Mere allegation in complaint that accused persons are directors and responsible officers of the company is not sufficient. AIR SC Averment in a complaint that accused partners at relevant time were in charge of and responsible to the partnership firm for conduct of its business are necessary to initiate process against them for an offence under sec NI Act.
Various High courts and the Supreme Court have explained this many a time. Complaint in respect of such a cheque issued as a gift, is not maintainable. Cognizance of offence of cheque dishonour — No condition precedent that complaint should have been signed by the payee as holder of cheque — A complaint need not be presented by complainant himself — Pleader or counsel in whose favour vakalatnama has been executed by complainant is competent to file complaint.
Death of original complainant after filing of complaint — Son of the deceased came to be added as complainant subsequent to taking cognizance of offences — Proceedings do not abate and son of deceased complainant can come on record and continue prosecution.
Offence of dishonour of cheque — Death of complainant at stage of evidence of defence — His legal heirs entitled to continue prosecution.
Judgment on 138 Of Negotiable Instrument Act
Dishonour of cheque — Proceedings in the complaint alleging offence under section cannot be initiated against legal heirs of the person who had issued the cheque.
On each presentation of the cheque and its dishonour a fresh right — and not cause of action — accrues in his favour. He may, therefore, without taking pre-emptory action in exercise of his such right under Cl b of sec. The payment by the accused of the full cheque amount during the pendency of trial under sec does not absolve the accused of his liability for the offence of dishonour of cheque.
However, the courts take a lenient view in such cases and the accused is set free or punished lightly. The Delhi High Court has also held that if during the pendency of a dispute under sec NI Act the parties enter into a settlement, it should be respected by the courts as proceedings under sec are quasi criminal in nature.
It, therefore, follows that the magistrate is obliged and duty bound to examine upon oath the complainant and his witnesses before issuance of process under section of CrPC though there is a solemn affirmation at the foot of the complainant by the complainant. The post-dated cheque becomes a cheque within the meaning of section on the date which is written thereon and not the 6 months period is to b reckoned for the purposes of proviso a to sec from the date.
Thus in case of a pot-dated cheque, six months period is to be reckoned from the date mentioned on the face of the cheque and not any earlier date on which the cheque was made over by the drawer to the drawee. Respondent issued a blank cheque without mentioning the date and amount and sent it with a letter requesting complainant to present it after a month — Act of complainant in filling up amount portion and date was a material change and it could not be enforced even though it was issued for a legal liability — Alteration without the consent of the party who issued the cheque rendered cheque invalid.
Every alteration is not material alteration — Only such alteration which would adversely affect interest of the other side could be called material alteration.
These are material alterations.Negotiable Instruments Act, is an act in India dating from the British colonial rule, that is still in force largely unchanged. The history of the present Act is a long one. The Act was originally drafted in by the 3rd Indian Law Commission and introduced in December in the Council and it was referred to a Select Committee.
Objections were raised by the mercantile community to the numerous deviations from the English Law in which it contained. The Bill had to be redrafted in After the lapse of a sufficient period for criticism by the Local Governments, the High Courts and the chambers of commerce, the Bill was revised by a Select Committee. In spite of this Bill could not reach the final stage. On the recommendation of the new Law Commission, the Bill was re-drafted and again it was sent to a Select Committee which adopted most of the additions recommended by the new Law Commission.
The draft thus prepared for the fourth time was introduced in the Council and was passed into law in being the Negotiable Instruments Act, Act No.
The most important class of Credit Instruments that evolved in India were termed Hundi. Their use was most widespread in the twelfth century and has continued till today. In a sense, they represent the oldest surviving form of credit instrument. These were used in trade and credit transactions; they were used as remittance instruments for the purpose of transfer of funds from one place to another.
In Modern era Hundi served as traveller's cheques. According to Section 13 of the Negotiable Instruments Act, "A negotiable instrument means a promissory note, bill of exchange or cheque payable either to order or to bearer. Provided that such usages may be excluded by any words in the body of the instrument, which indicate an intention that the legal relations of the parties thereto shall be governed by this Act; and it shall come.
We prefer to carry a small piece of paper known as Cheque rather than carrying the currency worth the value of the Cheque. Before there being no provision to restrain the person issuing the Cheque without having sufficient funds in his account. Of course on Dishonoured cheque there is a civil liability accrued.
In order to ensure promptitude and remedy against the defaulters of the Negotiable Instrument a criminal remedy of penalty was inserted in Negotiable Instruments Act, by amending it with Negotiable Instruments Act, With the insertion of these provisions in the Act the situation certainly improved and the instances of dishonour have relatively come down but on account of application of different interpretative techniques by different High Courts on different provisions of the Act it further compounded and complicated the situation although on dishonour of cheques the trends of the verdicts of the Supreme Court of India.
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