Cheque
Sec.138 ,sec.141 N.I.Act – Partnership Firm – issued cheque – cheque bounced – firm not made as accused – fatal to the prosecution – firm registration form filed by accused can be considered even at preliminary stage against the general rule no document filed by accused can be considered – no issue of reply notice is not fatal for receiving the document filed by accused – complaint was quashed as not maintainable = Smt. Bommidipati Madhavi….Petitioner/accused The State of Andhra Pradesh rep.by Public Prosecutor, High Court of A.P., Hyderabad and another….Respondents = published in judis.nic.in/judis_andhra/filename=10600
Sec.138 ,sec.141 N.I.Act – Partnership Firm – issued cheque – cheque bounced – firm not made as accused – fatal to the prosecution – firm registration form filed by accused can be considered even at preliminary stage against the general rule no document filed by accused can be considered – no issue of reply notice is not fatal … Continue reading
Sec.138 N.I.Act – Sec.201 of Cr.p.c. – Power of magistrate to recall it’s orders – Jurisdiction of court for cheque bounce case = (i) Whether the Magistrate after having found sufficient ground for proceeding in case and issued summons under Section 204 Cr.P.C. has the jurisdiction to recall or review the order by exercising its power under Section 201 Cr.P.C.; = Apex court held – No. (ii) Whether the petition under Section 138 of the N.I. Act was maintainable at Mumbai on the ground that goods were supplied from Mumbai to Delhi and cheques were handed over at Mumbai and legal notice was issued from Mumbai. = Apex court held – Yes = DEVENDRA KISHANLAL DAGALIA … APPELLANT VERUS DWARKESH DIAMONDS PVT. LTD. AND ORS. … RESPONDENTS = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40991
Sec.138 N.I.Act – Sec.201 of Cr.p.c. – Power of magistrate to recall it’s orders – Jurisdiction of court for cheque bounce case = (i) Whether the Magistrate after having found sufficient ground for proceeding in case and issued summons under Section 204 Cr.P.C. has the jurisdiction to recall or review … Continue reading
sec. 138 , 142 of N.I.Act – Whether the accused puts the signature on the acknowledgement in a different manner or whether some body signed on behalf of the addressee or whether addressee is having a knowledge about the contents of notice issued under Section 138 (b) of the Act, are questions of fact which cannot be resolved exercising the powers under Section 482 Cr.P.C. Simply because the signature of the accused is varying, it cannot be a ground to quash the proceedings because the complainant has to establish that the accused signed the acknowledgement and if the acknowledgement has not been signed by the accused, then the burden is on him to show that some body on his behalf signed the acknowledgment and he has no knowledge about the demand notice. Therefore, there are no grounds to quash the proceedings.
CRLP 929 / 2013 CRLPSR 3321 / 2013 PETITIONER RESPONDENT BUDAGAM SREENIVAS, KHAMMAM., VS THE STATE OF AP., REP PP., AND ANR., PET.ADV. : MUMMANENI SRINIVASA RAO RESP.ADV. : PUBLIC PROSECUTOR SUBJECT: U/s.482 Cr.p.c under sec.138 and 142 DISTRICT: KHAMMAM THE HON‘BLE SRI JUSTICE K.C.BHANU CRIMINAL PETITION NO.929 OF 2013 ORDER: This petition is filed by the petitioner-accused under … Continue reading
LEGAL ISSUES whether the sections 29 and 357 of the Criminal Procedure Code and section 138 of the Act should be read harmoniously and complementary to each other; and if so done, compensation could be awarded in cases under section 138 of the Act to meet the loss sustained by the dishonour and that if compensation could not be awarded for any reason, fine could be levied upto twice the cheque amount ?
1 Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1902 OF 2011 (Arising out of SLP (Crl.) No.2586 of 2007) R.Vijayan … Appellant Vs. Baby & Anr. … Respondents J U D G M E N T R.V.RAVEENDRAN, J. Leave granted. Heard. 2. The complainant in a complaint under section … Continue reading
cheque bounce notice – proforma ?=hough, no form of notice is prescribed in the above Clause (b) the requirement is that notice shall be given in writing within fifteen days of receipt of information from the bank regarding return of the cheque as unpaid and in the notice a demand for payment of the amount of the cheque has to be made. The object of notice is to give a chance to the drawer of the cheque to rectify his omission and also to protect honest drawer. Service of notice of demand in Clause (b) of the proviso to Section 138 is a condition precedent for filing a complaint under Section 138 of the Act. In the present appeals there is no dispute that notices were in writing and these were sent within fifteen days of receipt of information by the appellant- bank regarding return of cheques as unpaid. Therefore, only question to be examined whether in the notice there was a demand for payment. The last line to the portion of notice extracted above reads as under : “Kindly arrange to make the payment to avoid the unpleasant action of my client.” In our opinion it is a clear demand as required under Clause (b) of Section 138. Regarding demand for payment, the High Court was of the opinion that “the intention in the notice was that cheque was being presented again and the applicant/petitioner should arrange the payment on re-presentation of the cheque”. The High Court over looked the last line of notice as indicated above and, therefore, erred in holding that there was no demand of payment. A cheque can be presented any number of times to the bank within the period of its validity. In view of the above, appellant-bank had a legal right to re-present the cheques to the bank as indicated in the notices and, therefore, respondents could have arranged payment either through bank or directly to the appellant bank. By not doing so the provision of Section 138 is clearly attracted.
CASE NO.: Appeal (crl.) 1056-57 of 1999 PETITIONER: CENTRAL BANK OF INDIA AND ANR. RESPONDENT: SAXONS FARMS AND ORS. DATE OF JUDGMENT: 07/10/1999 BENCH: G.T. NANAVATI & S.N. PHUKAN JUDGMENT: JUDGMENT 1999 Supp(3) SCR 534 The Judgment of the Court was delivered by PHUKAN, J. Leave granted. These two appeals are by the complainants against … Continue reading
cheque bounce case -verses- jurisdiction = The offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. Following are the acts which are components of the said offence : (1) Drawing of the cheque, (2) Presentation of the cheque to the bank, (3) Returning the cheque unpaid by the drawee bank, (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice. It is not necessary that all the above five acts should have been perpetrated at the same locality. It is possible that each of those five acts could be done at 5 different localities. But concatenation of all the above five is a sine qua non for the completion of the offence under Section 138 of the Code. In this context a reference to Section 178(d) of the Code is useful. It is extracted below : “Where the offence consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.” Thus it is clear, if the five different acts were done in five different localities any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act. In other words, the complainant can choose any one of those courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done.
CASE NO.: Appeal (crl.) 1015 of 1999 PETITIONER: K. BHASKARAN RESPONDENT: SANKARAN VAIDHYAN BALAN AND ANR. DATE OF JUDGMENT: 29/09/1999 BENCH: K.T. THOMAS & M.B. SHAH JUDGMENT: JUDGMENT 1999 Supp(3) SCR 271 The Judgment of the Court was delivered by THOMAS, J. Leave granted. This is a case where the complainant and the accused are … Continue reading
Closure of the account would be an eventuality after the entire amount in the account is withdrawn. It means that there was no amount in the credit of that account on the relevant date when the cheque was presented for honouring the same. The expression the amount of money standing to the credit of that account is insufficient to honour the cheque is a genus of which the expression that account being closed is specie. After issuing the cheque drawn on an account maintained, a person, if he closes that account apart from the fact that it may amount to another offence, it would certainly be an offence under Section 138 as there was insufficient or no fund to honour the cheque in that account; Further, cheque is to be drawn by a person for payment of any amount of money due to him on an account maintained by him with a banker and only on that account cheque should be drawn. This would be clear by reading the Section along with provisos (a), (b) & (c ). Secondly, proviso (c) gives an opportunity to the drawer of the cheque to pay the amount within 15 days of the receipt of the notice as contemplated in proviso (b). Further, Section 140 provides that it shall not be a defence in prosecution for an offence under Section 138 that the drawer has no reason to believe when he issued the cheque that the cheque may be dishonoured on presentment for the reasons stated in that Section. Dishonouring the cheque on the ground that account is closed is the consequence of the act of the drawer rendering his account to a cipher. Hence, reading Section 138 and 140 together, it would be clear that dishonour of the cheque by a bank on the ground that account is closed would be covered by the phrase the amount of money standing to the credit of that account is insufficient to honour the cheque. Learned Counsel for the appellants, however, submitted that Section 138 being a penal provision, it should be strictly interpreted and if there is any omission by the Legislature, wider meaning should not be given to the words than what is used in the Section. In our view even with regard to penal provision, any interpretation, which withdraws life and blood of the provision and makes it ineffective and a dead letter should be averted. If the interpretation, which is sought for, were given, then it would only encourage dishonest persons to issue cheques and before presentation of the cheque close that account and thereby escape from the penal consequences of Section 138. This Court in the case of Kanwar Singh Vs. Delhi Administration, (1965) 1 SCR 7 while construing Section 418 (i) of the Delhi Municipal Corporation Act, 1959 observed: – It is the duty of the Court in construing a statute to give effect to the intention of the legislature. If, therefore, giving a literal meaning to a word used by the draftsman, particularly in a penal statute, would defeat the object of a legislature, which is to suppress a mischief, the Court can depart from the dictionary meaning or even the popular meaning of the word and instead give it a meaning which will advance the remedy and suppress the mischief.
PETITIONER: NEPC MICON LIMITED AND OTHERS Vs. RESPONDENT: MAGMA LEASING LIMITED DATE OF JUDGMENT: 26/04/1999 BENCH: K.T.Thoms, M.B.Shah JUDGMENT: Shah, J. Leave granted. NEPC Micon Limited, Appellant No. 1 and its directors approached the High Court for quashing the proceedings in Case No. C-494 of 1997 pending on the file of the Metropolitan Magistrate, Calcutta, … Continue reading
This shows that section 138 gets attracted in terms if cheque is dishonoured because of insufficient funds or where the amount exceeds the arrangement made with the bank. It has, however, been held by a Bench of this Court in Electronics Trade and Technology Development Corpn, LTD, vs. Indian Technologists and Engineers (Electronics) (P) Ltd., 1996 (2) SCC 739, that even if a Cheque is dishonoured because of `stop Payment’ instruction to the bank, section 138 would get attracted. 3. The case of the appellant is that the cheques were returned, not because of insufficient funds, but because he had issued stop memo to the bank for reasons detailed in the letter of appellant’s Advocate dated 4.10.1994 addressed to the respondent. This letter was replied by the respondent on 12.10.1994 stating, inter alia, that the allegations made in the letter of 4.10.1994 were not true; and date and place may be fixed for perusal of the accounts and connected records. The appellant has produced and connected records. The appellant has produced A communication of the Indian Overseas Bank, Thrissur, Branch, which is at page 64 of the Paper Book, showing that when the cheques in question were presented there was sufficient balance in the account of the appellant. This communication bears the numbers of two cheques which tally with those mentioned in the complaint. we are therefore, satisfied that the cheques were not returned because of insufficient funds, as is the allegation in the complaint. 3A. It may be stated that the learned counsel for the respondent filed a written submission, without having obtained permission when the case has been finally heard and reserved for judgment, on 7.10.1996 in which it has been stated that the cheques in question were issued against Account No. 562 of the petitioner, in which there was no cover. The further submission is that the letter of the Bank Manager which is at page 64 really. 5. From the facts mentioned above, we are satisfied that in the present case cheques were presented after the appellant had directed its bank to ‘stop payment’. We have said so because though it has been averred in the complaint that the cheque dated 10.10.1994 was presented for collection on that date itself through the bank of the respondent which is Catholic Syrian Bank Ltd. from the aforesaid letter of the Indian Overseas Branch, we find that the cheque was presented on 15.10.1994 (in clearing). The lawyer’s notice to the respondent being of 4th October, which had been replied on 12th from Cochi, which is the place of the respondent, whereas the Advocate who issued notice on behalf of the appellant was at Thrissur, it would seem to us that the first cheque had even been presented after the instruction of ‘stop payment’ issued by the appellant had become known to the respondent.
PETITIONER: K.K. SIDHARTHAN Vs. RESPONDENT: T.P. PRAVEENA CHANDRAN AND ANOTHER DATE OF JUDGMENT: 08/10/1996 BENCH: G.N. RAY, B.L. HANSARIA ACT:HEADNOTE:JUDGMENT: J U D G M E N T HANSARIA.J. Respondent No.1, hereinafter referred to as the respondent, filed a complaint against the appellant under section 138 read with 149 of the Negotiable Instruments Act, 1881 … Continue reading
when cheque was dishonored, a summery suit can be also fied for quick recovery – unless tenable grounds are there , no permission can be given to defend the case -Order XXXVII C.P.C. has been included in the Code of Civil Procedure in order to allow a person, who has a clear and undisputed claim in respect of any monetary dues, to recover the dues quickly by a summary procedure instead of taking the long route
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION(C) NO.25144 OF 2009 Ms. V.K. Enterprises … Petitioner Vs. M/s. Shiva Steels … Respondent J U D G M E N T ALTAMAS KABIR, J. 1. The short point involved in this Special Leave Petition is whether the learned District and Sessions … Continue reading
ARTICLES & CHEQUE BOUNCE CASES Etc.,& other courts 
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