Partnership firm – Dissolution – One partner issued cheque to the other towards his liability – Presumption is that cheque was for the discharge, in whole or in part, of any debt or other liability. Lawyer for cheque Bouncing Matter (Abdul Hameed Vs State of Rajasthan & Anr.) 2004(2) Civil Court Cases 321 (Rajasthan) : 2004(2) Criminal Court Cases 194 (Rajasthan)
Dishonour of cheque – Bank purchased cheque and made payment to the person who presented the cheque – Bank can prosecute the drawer, but not the person who presented the cheque and collected payment. (Cheruku Enterprises Vs State Bank of Hyderabad) 2003(2) Criminal Court Cases 36 (A.P.)
Dishonour of cheque – Complaint u/s 138 as well as civil suit for recovery – Two proceedings are independent of each other – If Criminal Court levies fine on accused and orders payment of compensation out of amount of fine, then Civil Court can take that fact into account in moulding its award for compensation if any, while decreeing suit subsequently – When decree passed by Civil Court is only money decree not involving award of compensation question of adjusting compensation awarded by Criminal Court against such decree does not arise – Where Civil Court which decreed suit had not made adjustment of compensation awarded by Criminal Court, Court executing decree has no jurisdiction to go behind decree and make adjustment. Lawyer for cheque Bouncing Matter (Smt.Gayathri Vs Smt.Clement Mary) 2003(2) Civil Court Cases 308 (Karnataka)
Summons – Service – Case dismissed for non payment of registered postal charges – There is no procedure for issuance of process to an accused by post – If service of summons is not fruitful then Court can issue bailable or non-bailable warrant of arrest – Order as to payment of postal charges being illegal as such consequent dismissal for not taking steps is also not proper in the eye of law. (M/s Nav Maharashtra Chakan Oil Mill Ltd. Vs M/s Shivashakti Poultry Farm) 2003(2) Civil Court Cases 221 (Karnataka) : 2003(2) Criminal Court Cases 270 (Kant.)
Dishonour of cheque – Preliminary evidence – Proceedings before Magistrate u/s 200 Cr.P.C. is an inquiry u/s 2(g) of the Code. (Vasudevan Vs State of Kerala) 2005(1) Civil Court Cases 440 (Kerala)
Dishonour of cheque – Preliminary evidence – Statement of a complainant u/s 200 Cr.P.C. is evidence – Any statement which Court permits or requires to be made before it by witnesses, whether such statement be tested by a cross-examination or not, will certainly be evidence for the purpose of S.3 of Evidence Act. (Vasudevan Vs State of Kerala) 2005(1) Civil Court Cases 440 (Kerala)
Dishonour of cheque – Complaint – Summoning order – Can be recalled if complaint on the very face of it does not disclose any offence against the accused. (M/s.Prakash Industries Ltd. Vs State & Ors.) 2004(1) Criminal Court Cases 367 (Delhi)
Dishonour of cheque – Complaint – List of witnesses – In absence of list of witnesses summons against accused will not be issued – Provision of S.204(2) is mandatory in nature commanding absolute compliance. Lawyer for cheque Bouncing Matter(Fakirappa Vs Shiddalingappa & Anr.) 2002(1) Criminal Court Cases 689 (Kant.)
Offence u/s 138 Negotiable Instruments Act – Complaint – Summoning order – Defective statutory notice – Order of summoning cannot be recalled as there is no provision in the Code – Remedy lies by filing a petition u/s 482 of the Code. (Subramanium Sethuraman Vs State of Maharashtra & Anr.) 2004(2) Apex Court Judgments 507 (S.C.) : 2004(4) Criminal Court Cases 307 (S.C.)
Dishonour of cheques – Complaint filed for more than three cheques – No ground to quash the complaint – Court may separate the trial to be in conformity with the provisions of S.219 Cr.P.C. (Punjab Tyre House & Ors. Vs State of Gujarat) 2003(3) Criminal Court Cases 18 (Gujarat)
Cheque – Request to send the cheque to handwriting expert for examination – Every such request not to be allowed – It is for the trial Court to alertly consider the acceptability of such request and ensure that the cheque is forwarded to the expert only if satisfactory reasons are available. (Francis Vs Pradeep) 2004(3) Civil Court Cases 351 (Kerala) : 2004(4) Criminal Court Cases 13 (Kerala)
Complaint – Dismissal in default – In results into acquittal of accused – Remedy is that of appeal and not revision. (Krisan Kumar Gupta Vs Mohammed Jaros) 2003(1) Criminal Court Cases 179 (Delhi)
Complaint – Non appearance of complainant – Dismissal for default – It is a final order – Magistrate has no inherent power to restore the complaint. (Ram Bhaj Jain Vs M/s Brar Rice and General Mills) 2003(2) Criminal Court Cases 592 (P&H)
Complaint – Non appearance of complainant – Option lies with the Magistrate either to dismiss the complaint or to adjourn the case for some reason if the Magistrate thinks it proper to adjourn the hearing. (Krisan Kumar Gupta Vs Mohammed Jaros) 2003(1) Criminal Court Cases 179 (Delhi)
Dishonour of cheque – Complaint – Dismissal in default – For absence on one occasion, the complaint should not be dismissed in the interest of substantial criminal justice. (Ampolu Apparao Vs Public Prosecutor) 2003(3) Criminal Court Cases 585 (A.P.)
Dishonour of cheque – Complaint – Non appearance of complainant – Complaint dismissed in default – Order of dismissal set aside – Presence of complainant was not required on that day – Magistrate could dispense with appearance of complainant under S.256 Cr.P.C. (Bhagwant Singh Vs M/s Suresh Steel Industries) 2003(1) Criminal Court Cases 21 (P&H)
Preliminary evidence recorded and summons issued – Complaint dismissed in default on subsequent date – It has the effect of acquittal – Complainant has remedy of appeal – Revision not maintainable. (H.P.Financial Corporation Vs M/s Continental Spinners Ltd.) 2003(3) Criminal Court Cases 452 (H.P.)
Complaint – Dismissal for default – Complainant pursuing his case seriously and appearing on every hearing – When the case was not fixed for evidence of complainant, Magistrate could dispense with the appearance of complainant u/s 256 Cr.P.C. and adjourn the case. (Punjab State Civil Supplies Corporation Ltd. Vs Mangat Rai) 2002(3) Criminal Court Cases 609 (P&H) : 2003(1) Civil Court Cases 156 (P&H)
Dishonour of cheque – Complaint – Dismissal for default – Setting aside order – Charge framed – Complainant pursing complaint for two years – Magistrate could adjourn the case and could dispense with personal attendance of complainant – Efforts of Magistrate should be to dispose of case on merits instead of dismissing it in default – Held, under the circumstances Magistrate was wholly unjustified in dismissing the complaint for want of prosecution. Lawyer for cheque Bouncing Matter (Sant Lal Bhatia Vs City Credit and Leasing Company) 2002(3) Criminal Court Cases 291 (P&H)
Dishonour of cheque – Complaint – Court can acquit accused in middle of trial before recording evidence if on bare reading of complaint no offence is made out and yet the process is issued. (Urban Co-op. Credit Society, Borsad Vs State of Gujarat & Anr.) 2004(1) Criminal Court Cases 527 (Gujarat)
Complaint u/s 138 Negotiable Instruments Act and S.420 IPC – Accused summoned in offence u/s 138 only – Complaint dismissed for want of prosecution – Amounts to acquittal – Second complaint u/s 420 IPC not maintainable even if no summoning order was issued u/s 420 IPC. (Lekh Raj Vs Pardeep Sharma) 2003(3) Criminal Court Cases 76 (P&H)
Dishonour of cheque – Conviction – In appeal parties compromised – Conviction and sentence set aside – Offence u/s 138 is compoundable under S.147 of Negotiable Instruments Act. (Anil Kumar Haritwal Vs Alka Gupta) 2004(2) Apex Court Judgments 581 (S.C.) : 2004(3) Criminal Court Cases 176 (S.C.) : 2005(1) Civil Court Cases 795 (S.C.)
Conviction – Compensation – Magistrate has power to impose fine by way of compensation for payment to complainant – There is no limit on power of Magistrate to fix quantum of compensation. (R.D.Bharti Vs The Home Secretary, Union Territory of Chandigarh & Ors.) 2004(4) Criminal Court Cases 73 (P&H)
Dishonour of cheque – Fine of Rs.20,000/- imposed – Order not valid – Magistrate cannot impose fine exceeding Rs.5,000/- besides imprisonment – High Court also cannot impose a sentence or fine exceeding the said limit – Magistrate can alleviate the grievance of the complainant and can award any amount as compensation. Lawyer for cheque Bouncing Matter(P.Mazher Vs State of A.P. rep by Public Prosecutor) 2004(1) Criminal Court Cases 491 (A.P.)
Sentence & fine of Rs.1,50,000/- – Appeal against – Appellate Court suspended fine on furnishing bank guarantee – Held, order for furnishing bank guarantee is not valid and the same set aside. (Urvi Dutta Nautiyal Vs State of Uttaranchal) 2002(3) Criminal Court Cases 681 (Uttaranchal)
Dishonour of cheque of Rs.1.45 lacs – Conviction of accused – Sentence of 15 days and compensation of Rs.1.52 lacs imposed out of which Rs.3000/- to go to State for loss suffered by State in terms of judicial time and resources spent for resolving the controversy between the parties – Held, order to pay compensation to State is not valid – Administration of justice is function of State – No loss could to be said to have been suffered by State for resolving the controversy between the parties. Lawyer for cheque Bouncing Matter(N.E.Varghese Vs State of Kerala) 2002(3) Criminal Court Cases 179 (Kerala)
Dishonour of cheque – Conviction – Appeal against – Dismissal in absence of counsel for appellant – Held, criminal appeal cannot be dismissed for want of prosecution simplicitor without examining the merits thereof. (Raghubhai Surabhai Bharwad Vs Satishkumar Ranchhoddas Patel & Anr.) 2004(2) Civil Court Cases 300 (Gujarat)
Additional evidence at appellate stage – When despite grant of time for defence evidence, the accused fails to avail of the opportunity of leading defence evidence, he cannot complain that he was not given reasonable or proper opportunity – Proper and reasonable opportunity means an opportunity fairly appropriate under the circumstances of the trial and not denying the accused to put forth, his case or to lead defence evidence – Petitioner failed to adduced defence evidence despite several opportunities – Application rejected. (A.Hasan Bava Vs P.V.Upadhya) 2004(3) Civil Court Cases 553 (Karnataka)
Return of complaint by Court having no territorial jurisdiction to be presented before proper Court – Period mentioned for representation of complaint – Period of pendency of complaint to be excluded – Period from return of complaint to representation of complaint cannot be condoned as there is no provision either in Cr.P.C. or Limitation Act. (Rayala Sima Agro Enterprises & Ors. Vs Gujarat Agro Industries Corpn. Ltd.) 2002(3) Criminal Court Cases 460 (A.P.)
Alteration in date of cheque to revalidate it – Whether it was with consent of drawer or not? – It is a question of fact which has to be established on evidence during trial – Not a ground for quashing the complaint. (Veera Exports Vs T.Kalavathy) 2002(1) Criminal Court Cases 01 (S.C.)
Dishonour of cheque – Complaint – Notice – Sufficient of service of notice – Question is to be decided on basis of evidence led during trial and not at initial stage – Proceedings cannot be quashed on ground of insufficiency of service of notice, when question is yet to be decided by trial Court. (Fakirappa Vs Shiddalingappa & Anr.) 2002(1) Criminal Court Cases 689 (Kant.)
Dishonour of cheque – Complaint – Sought to be quashed on the ground that no notice was issued – Petitioner to lead evidence in the trial Court to prove this fact – No case for exercising inherent power is made out – Petition dismissed. (Malhotra Handlooms & Anr. Vs Hari Om Yarns (P) Ltd.) 2003(3) Criminal Court Cases 300 (P&H)
Dishonour of cheque – Prosecution proceedings not to be quashed at initial stage if uncontroverted allegations in complaint and evidence recorded at the preliminary stage of enquiry prima facie bring out the case within the ambit of S.138 of the Act. (Shakti Bhakoo Vs Varun Khemka) 2003(2) Civil Court Cases 358 (P&H) : 2003(2) Criminal Court Cases 237 (P&H)
Payment already made – Plea of – Same to be proved at the trial – Not a ground for quashing proceedings. (Sri Krishna Bhupathi Vs Chandana Constructions) 2004(2) Civil Court Cases 86 (Karnataka) : 2004(2) Criminal Court Cases 47 (Karnataka)
Cheque – Name, date and amount alleged to be put by complainant and complainant denied this suggestion – Accused moved an application for comparison of his handwriting with the disputed handwriting on the cheque – Court instead ordering comparison of handwriting of complainant with the disputed handwriting on cheque – Held, Magistrate has committed no illegality or irregularity. Lawyer for cheque Bouncing Matter(Jai Prakash Vs State of Rajasthan & Anr.) 2005(2) Criminal Court Cases 690 (Rajasthan)
Cheque – Name, date and amount alleged to be put by the complainant and complainant denied this suggestion – Court directing for comparison of handwriting of complainant with the disputed handwriting on the cheque – Held, Magistrate has committed no illegality or irregularity. (Jai Prakash Vs State of Rajasthan & Anr.) 2005(2) Criminal Court Cases 690 (Rajasthan)
Dishonour of cheque – Insufficient funds – Offence is covered u/s 138 NI Act – Provision of S.420 IPC is not attracted unless mala fide intention of the person issuing the cheque is established – Dishonest intention and misrepresentation are to be specifically indicated to attract the provisions of S.406 or 420 IPC and in absence of specific allegations offence is covered only u/s 138 of NI Act. (S.Jayaswami & Anr. Vs State of Orissa & Anr.) 2005(2) Civil Court Cases 138 (Orissa) : 2005(2) Criminal Court Cases 369 (Orissa)
Dishonour of cheque – Complaint barred by limitation – Magistrate cannot take cognizance of same by treating complaint as one under Indian Penal Code regarding offence of heating where complaint does not make out case of offence under Indian Penal Code. (Srikanth P.Hutagee Vs Gangadhar S.Hutagekar) 2004(3) Civil Court Cases 493 (Karnataka)
Death of complainant – Cognizance of offence u/ss 420, 468 IPC and S.138 NI Act – Death of complainant does not ipso facto terminate the criminal proceedings more so when the son of complainant has stepped in and wanted to continue with the case. (Ajay Kumar Agarwal & Anr. Vs State of Jharkhand & Anr.) 2003(2) Criminal Court Cases 600 (Jharkhand)
Presentation of cheque to the bank within a period of six months from the date on which it is drawn – Means cheque to be presented to the Bank on which the cheque is drawn. (Ajay Gupta Vs State of Maharashtra & Anr.) 2004(3) Civil Court Cases 461 (Bombay)
Notice – Proof of sending notice at the last known address is sufficient compliance with the provision of S.138 of the Act – Wife of accused received notice – It is not necessary to examine postman or wife of accused to prove that wife of accused had been duly authorised by accused to receive notice. (Sheela Vs Gopalakrishnan) 2005(2) Civil Court Cases 252 (Kerala) : 2005(2) Criminal Court Cases 551 (Kerala)
‘Debt or other liability’ – Agreement to sell – Payment of balance sale consideration – Cannot squarely be construed as a ‘debt’ but it cannot escape the consideration under the expression ‘other liability’. Lawyer for cheque Bouncing Matter (Mandadi Ram Reddy & Anr. Vs State of A.P. & Anr.) 2004(1) Criminal Court Cases 17 (A.P.)
‘Debt or liability’ – Specific averment in complaint is not required – Burden of proving that there was no existing debt or liability would be on the drawer of cheque. (Lok Housing & Constructions Ltd. Vs M/s.DCM Daevoo Motors Ltd.) 2003(1) Criminal Court Cases 195 (Delhi)
‘Debt or liability’ – Whether cheque was issued as security or discharge of liability is a question of fact to be decided by trial Court. (M/s Kumar Rubber Industries Vs Sohan Lal) 2002(2) Criminal Court Cases 83 (P&H)
‘Stop payment’ – Cheque dishonoured – Accused is guilty of offence u/s 138 of the Act. (Bharat Kumar & Anr. Vs Ram Swarath Singh & Anr.) 2004(2) Criminal Court Cases 623 (P&H)
‘Stop payment’ – Non fulfilment of conditions of contract by complainant – Contents of accusation read over to accused – Case fixed for evidence – No question of stopping the proceedings arises – Application for quashing of complaint rightly dismissed by Court below. (Suresh Kumar Vs Rituraj Pipes & Plastic Pvt.Ltd.) 2005(2) Criminal Court Cases 855 (Rajasthan)
“Another person” refers to payee, holder, holder in due course and endorsee – These words carry same meaning as they are understood in civil jurisprudence – Consideration inter se between drawee and holder in due course is not necessary to bind drawer. (G.P.R.Housing Private Limited, Bangalore & Anr. Vs K.Venugopala Krishna) 2004(2) Civil Court Cases 170 (Karnataka) : 2004(2) Criminal Court Cases 24 (Karnataka)
“Debt or liability” – Presumption under S.139 is in favour of payee – Pleading to this effect is not required – Burden of proving that there was no existing debt or liability is on the respondent. (Wg.Cdr.R.R.J Dass Vs Satya Bhama Lal) 2003(2) Criminal Court Cases 276 (Delhi)
“Guarantee” – Cheque for Rs.22,000/- issued against loan of Rs.20,000/- for the due discharge of the liability (including interest) – Cheque dishonoured – It cannot be said that cheque is not issued for the due discharge of any legally enforceable debt/liability. (Venugopalan Vs Moosa) 2004(2) Civil Court Cases 139 (Kerala) : 2004(3) Criminal Court Cases 390 (Kerala)
“Holder in due course” – Means any person who for consideration became the possessor of a cheque payable to bear or the payee or indorsee thereof. (Punjab National Bank Vs Himgiri Traders & Anr.) 2004(1) Criminal Court Cases 380 (P&H) : 2004(2) Civil Court Cases 716 (P&H)
“Holder in due course” – Bank purchasing cheque from payee – Payee however not indorsed the cheque in favour of Bank – Bank is neither the payee nor holder in due course – S.138 Negotiable Instruments Act is not applicable when notice issued by Bank is neither by the payee nor by holder in due course. (Punjab National Bank Vs Himgiri Traders & Anr.) 2004(1) Criminal Court Cases 380 (P&H) : 2004(2) Civil Court Cases 716 (P&H)
“Stop payment” – Merely because the drawer issued notice to the drawee or to the bank for stoppage of payment it will not preclude an action under S.138 of the Act by the drawee or the holder of the cheque in due course. (Goa Plast (P) Ltd. Vs Chico Ursula D’Souza) 2004(1) Apex Court Judgments 273 (S.C.) : 2004(1) Criminal Court Cases 693 (S.C.) : 2004(2) Civil Court Cases 577 (S.C.)
30 cheques – One notice issued – 10 complaints limiting three cheques per each complaint filed – Cheques issued under various invoices – Held, each transaction under each invoice being separate, issue of cheque in discharge of the debt under the said invoice constitute a separate offence – There is nothing illegal in having filed ten different complaints. Lawyer for cheque Bouncing Matter (City Automobiles & Anr. Vs J.K.Industries Limited & Anr.) 2002(1) Criminal Court Cases 553 (A.P.)
Account closed – Dishonour of cheque – Offence will be committed only if account is closed after issuance of cheque and not when cheque is issued after closure of account. (Urban Co-op. Credit Society, Borsad Vs State of Gujarat & Anr.) 2004(1) Criminal Court Cases 527 (Gujarat)
Alteration in date of cheque by payee to revalidate it with consent of the drawer – Held, such alteration cannot be used as a ground to resist the right of the payee or the holder thereof. (Veera Exports Vs T.Kalavathy) 2002(1) Criminal Court Cases 01 (S.C.)
Alteration in date of cheque to revalidate it – Party consenting to the alteration as well as the party who made the alteration is disentitled to complaint against such alteration. (Veera Exports Vs T.Kalavathy) 2002(1) Criminal Court Cases 01 (S.C.)
Alteration in date of cheque to revalidate it by drawer or payee with the consent of drawer can be made even after expiry of validity of cheque period i.e six months. (Veera Exports Vs T.Kalavathy) 2002(1) Criminal Court Cases 01 (S.C.)
Blank cheque – Accused who handed over a blank cheque duly signed to another, authorises such person to make the relevant entries. (Chacko Vs Joseph) 2003(3) Criminal Court Cases 77 (Kerala)
Blank cheque – Cheque without actual amount payable is not a cheque – Amount payable can be filled up subsequently with the consent of the person who issued the cheque – If amount is filled up subsequently without consent of the person who issued the cheque then presumption u/s 139 stands rebutted – A blank cheque cannot be enforced even though it is issued for legal liability. (Avon Organics Ltd. Vs Poineer Products Limited & Ors.) 2004(2) Civil Court Cases 579 (A.P.) : 2004(2) Criminal Court Cases 335 (A.P.)
Blank cheque – Signature by a literate person goes a long way in the proof of the document. (Chacko Vs Joseph) 2003(3) Criminal Court Cases 77 (Kerala)
Blank cheque – When given towards liability or even as security, when the liability is assessed and quantified, if cheque is filled up and presented to bank, person who had drawn the cheque cannot avoid liability under section 138 of N.I. Act. (General Auto Sales Vs Vijayalakshmi) 2005(1) Civil Court Cases 654 (Kerala) : 2005(2) Criminal Court Cases 386 (Kerala)
Body of cheque – Need not to be written by the signatory to the cheque – A cheque can be filled up by anybody if it is signed by the account holder of the cheque, accepting the amount mentioned therein. (P.S.A.Thamotharan Vs Dalmia Cements (B) Ltd.) 2005(1) Civil Court Cases 608 (Madras) : 2005(1) Criminal Court Cases 671 (Madras)
Cause of action – Accrues on expiry of 15 days – 15 Days period starts to run on the day notice is received – Cause of action accrues on the following day on which period of 15 days expires. (Sri Krishna Bhupathi Vs Chandana Constructions) 2004(2) Civil Court Cases 86 (Karnataka) : 2004(2) Criminal Court Cases 47 (Karnataka)
Cheque – Amount and payee’s name not written by drawer but by somebody else or by payee – By itself not a ground to contend that cheque is not validly issued or that the cheque was not executed at all. Lawyer for cheque Bouncing Matter(Lillykutty Vs Lawrance) 2004(2) Civil Court Cases 38 (Kerala) : 2003(3) Criminal Court Cases 601 (Kerala)
Cheque – Validity period – Six months – Cheque has to be presented within six months in the bank on which the said cheque is drawn. (Pooja Granities and Marbles Ltd. Vs Ispat Finance Ltd. & Anr.) 2004(2) Criminal Court Cases 455 (Bombay)
Cheque dishonoured – Notice given – Payment not made – Cheque again presented and again dishonoured and once again notice given – Held, complaint is not maintainable – Once there is accrual of cause of action then limitation starts to run and it cannot stop for any reason – In case of dishonour of cheque cause of action arises only when notice is issued and payment is not made within 15 days – Complaint should have been filed within limitation on first accrual of cause of action. (M/s.Ajudiya Sugar Mills & Anr. Vs M/s.Alcobex Metals Ltd.) 2004(4) Criminal Court Cases 574 (Rajasthan)
Cheque dishonoured – Notice issued – Payment not made – Complaint not filed – Cheque presented for the second time – Cheque again dishonoured – Notice issued – Complaint filed on the basis of dishonour of cheque for the second time – Complaint is not maintainable even though complaint is within limitation from the first accrual of cause of action, as the same is not pleaded and complaint is filed pleading accrual of cause of action for the second time. (M/s Delhi Cloth Store Vs M/s Ahuja Traders) 2005(2) Civil Court Cases 401 (P&H) : 2005(2) Criminal Court Cases 672 (P&H)
Cheque dishonoured – Signatures on cheque incomplete – Proceedings quashed. (Vinod Tanna Vs Zaheer Siddiqui) 2002(1) Criminal Court Cases 625 (S.C.)
Cheque given as security – Cheque bounced – Comes within fold of S.138 of N.I. Act. (General Auto Sales Vs Vijayalakshmi) 2005(1) Civil Court Cases 654 (Kerala) : 2005(2) Criminal Court Cases 386 (Kerala)
Cheque issued after closure of account – Cheque dishonoured – Offence stands committed even if cheque is issued after closure of account because amount of money standing to credit of “that account” would be “nil” at the relevant time apart from it being closed. Lawyer for cheque Bouncing Matter (Hashmikant M.Sheth Vs State of Gujarat) 2004(4) Criminal Court Cases 553 (Gujarat)
Cheque issued after closure of account – Cheque dishonoured – Such a cheque falls within the sweep of S.138 of the Act. (Salim Vs Thomas) 2004(2) Civil Court Cases 620 (Kerala) : 2004(3) Criminal Court Cases 439 (Kerala)
Cheque issued against loan – However blank cheque alleged to be issued to third person and that the same is misused by the drawer – Person through whom drawer came into contact with drawee and in whose presence money was advanced not examined – Person to whom blank cheque issued not examined though was seen in the Court premises – Different ink used in body and signature of cheque – Accused acquitted. (C.Antony Vs K.G.Raghavan Nair) 2003(1) Civil Court Cases 1 (S.C.) : 2003(1) Criminal Court Cases 90 (S.C.)
Cheque issued as a guarantee – Dishonour of cheque – Offence u/s 138 is not made out – Acquittal upheld. (Sri Murugan Financiers Vs P.V.Perumal) 2005(1) Civil Court Cases 665 (Madras) : 2005(1) Criminal Court Cases 696 (Madras)
Cheque issued by guarantor to discharge liability of principal debtor – Cheque dishonoured – Complaint u/s 138 is maintainable against guarantor. (I.C.D.S. Ltd Vs Beena Shabeer & Anr.) 2002(3) Criminal Court Cases 411 (S.C.)
Cheque issued when account had already been closed – Provision of S.138 will apply. (N.A.Issac Vs Jeemon P.Abraham & Anr.) 2005(1) Civil Court Cases 690 (S.C.) : 2005(1) Criminal Court Cases 119 (S.C.)
Cheque presented twice and dishonoured – Complaint filed on the basis of second dishonoured – Fact of dishonour of cheque when presented first not mentioned in complaint – Complaint cannot be said to be not maintainable for the reason that no legal action was initiated when cheque was dishonoured for the first time. (K.Annaji Rao Vs N.Krishna Raju Sekhar & Anr.) 2004(3) Civil Court Cases 547 (A.P.)
Cheque reaching drawers bank beyond six months from its date – Acquittal is justified. (Lalu Vs Kalam) 2005(1) Civil Court Cases 538 (Kerala) : 2005(1) Criminal Court Cases 715 (Kerala)
Cheque without consideration – Burden to prove that there subsists no debt or liability is on accused. (G.P.R.Housing Private Limited, Bangalore & Anr. Vs K.Venugopala Krishna) 2004(2) Civil Court Cases 170 (Karnataka) : 2004(2) Criminal Court Cases 24 (Karnataka)
Company – Cheque issued by company dishonoured – Prosecution against company and Managing Director who signed the cheque – Death of Managing Director – Another Director cannot be prosecuted in absence of an averment that the said director was also responsible for the conduct and business of the company – Proceedings quashed. (Sham Lal Vs Raj Kumar Aggarwal) 2002(2) Criminal Court Cases 505 (P&H)
Company – Complaint – Filed by Assistant Manager of Credit Control – Authorisation can be express or implied and the implicity has to be inferred from the circumstances of the case and the things spoken or written, or the ordinary course of dealing. (The Waterbase Ltd. Vs Karuthuru Ravendra) 2002(2) Criminal Court Cases 676 (A.P.)
Company – Directors – Complaint disclosing that A-2 issued cheque on behalf of A-1 company with the consent and knowledge of the directors – It cannot be held that there is no accusation against the Directors of the Company – It is for the Directors to establish during trial that they are not responsible for the day to day business of the company. (S.P.Subramaniam & Ors. Vs Vasavi Cotton Traders) 2002(3) Criminal Court Cases 275 (A.P.)
Company – Directors – Mere stating that Directors were responsible to the company for its conduct is not sufficient – There must be averment in the complaint about the specific and active role about the commission of offence. (Madanlal Vs Bhanwarlal) 2003(2) Civil Court Cases 445 (Rajasthan)
Company – General authorisation by Board of Company to its M.D. to file law suits with further power to delegate its power – Complaint filed by AGM on delegation of power by M.D. – No illegality – Resolution of Board of Directors is not required in each case. (M/s Thapar Agro Mills & Anr. Vs Haryana State Industrial Development Corporation Ltd. & Anr.) 2004(3) Criminal Court Cases 478 (P&H)
Company – Post dated cheque issued by an officer of Company – Said officer resigned before due date and this fact conveyed to office of Registrar of Companies and was registered there also – Said officer cannot be held to be an officer responsible for the management of the company on the date the offence can be said to have been committed – Such officer cannot be held as accused. (Urban Co-op. Credit Society, Borsad Vs State of Gujarat & Anr.) 2004(1) Criminal Court Cases 527 (Gujarat)
Company – Prosecution of Chairman and Managing Director in absence of joining of Company as an accused – No infirmity in the complaint. (Ashok Chaturvedi Vs Dr.(Mrs.) Nirmala Jaywant Patil) 2003(1) Civil Court Cases 652 (Bombay) : 2003(1) Criminal Court Cases 619 (Bombay)
Complainant – Death during pendency of proceedings – Not necessary that legal heirs or legal representatives only can continue the proceedings – A fit and proper person can be permitted to prosecute the petition. (Sebastian Vs State of Kerala) 2004(2) Civil Court Cases 05 (Kerala) : 2004(2) Criminal Court Cases 223 (Kerala)
Complainant – Death during pendency of proceedings – Sister – Can be allowed to continue the proceedings when legal heirs do not chose to come on record to prosecute the petition. (Sebastian Vs State of Kerala) 2004(2) Civil Court Cases 05 (Kerala) : 2004(2) Criminal Court Cases 223 (Kerala)
Complaint – Dismissed in default – Complaint restored on the ground that it was still at the initial stage of summoning the accused – No illegality. (Nambhi Raj Vs Adarsh Diwan) 2004(3) Criminal Court Cases 451 (P&H)
Complaint – New check issued on taking back cheque issued earlier – This fact mentioned in notice – Complaint based on cheque issued earlier – In proof of complaint, new cheque produced – Cheque issued earlier, on which complaint based not produced – Summoning order passed only on the basis of cheque issued earlier without taking note of the fact that a different cheque was introduced into evidence – Held, complaint is not only defective but also there is total non-application of mind by Magistrate – This is not a mere technical defect which can be allowed to be amended – Since cheque is the very basis of complaint and when very foundation has not been properly laid by giving correct number of cheque, complaint itself becomes not maintainable. Lawyer for cheque Bouncing Matter (M/s Kumar Rubber Industries Vs Sohan Lal) 2002(2) Criminal Court Cases 83 (P&H)
Components of offence under S.138 are: (1) drawing of the cheque by a person on an account maintained by him with a banker, for payment to another person from out of that account for discharge in whole/part any debt or liability, (2) presentation of the charge by the payee or the holder in due course to the bank, (3) returning the cheque unpaid by the drawer bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque, (4) giving notice in writing to the drawer of the cheque within 15 days of the receipt of information by the payee from the bank regarding the return of the cheque as unpaid demanding payment of the cheque amount, (5) failure of the drawer to make payment to the payee or the holder in due course of the cheque, of the amount covered by the cheque within 15 days of the receipt of the notice. (K.R.Indira Vs Dr.G.Adinarayana) 2004(1) Criminal Court Cases 232 (S.C.)
Criminal Procedure Code, 1973, Ss.254 & 315 – Dishonour of cheque – Defence witness – Summoning of – Accused himself not examined as a witness – His application to summon defence witness cannot be rejected on the ground that he should first himself be examined as a witness. (B.M.Arif Vs Boston Tea (India) Limited, Mangalore) 2004(3) Civil Court Cases 628 (Karnataka)
Death of drawer of cheque – Proceedings against his L.R’s – Cannot be initiated. (Smt.Girija Vs K.Vinay) 2003(3) Criminal Court Cases 203 (Karnataka)
Defects in complaint – A defect which goes to the root of the matter, cannot be allowed to amended. (M/s Kumar Rubber Industries Vs Sohan Lal) 2002(2) Criminal Court Cases 83 (P&H)
Defects in the format of complaint – Court can grant permission to rectify the same. (M/s Bedi Sons Steels & Wires Vs M/s B.G.Brothers) 2002(2) Criminal Court Cases 41 (P&H) : 2002(2) Criminal Court Cases 553 (P&H)
Dishonor of cheque – Period of 30 days expiring on a holiday – Complaint filed on next day is valid. (Chandradasan Vs George) 2004(1) Criminal Court Cases 774 (Kerala) : 2004(2) Civil Court Cases 291 (Kerala)
Dishonour of cheque – “Refer to drawer” – Means dishonour is on ground of insufficiency of funds. (Rajan Vs Sharafudheen) 2003(2) Criminal Court Cases 415 (Kerala)
Dishonour of cheque – 30 cheques – One notice issued – 10 complaints limiting three cheques per each complaint filed – Cheques issued under various invoices – Held, each transaction under each invoice being separate, issue of cheque in discharge of the debt under the said invoice constitute a separate offence – There is nothing illegal in having filed ten different complaints. Lawyer for cheque Bouncing Matter (City Automobiles & Anr. Vs J.K.Industries Limited & Anr.) 2002(1) Criminal Court Cases 553 (A.P.)
Dishonour of cheque – Accused convicted and sentenced to one year RI and a fine of Rs.4000/- – During revision accused paid the amount of cheque and fine – Accused remained in custody for 18 days – Sentence reduced to already undergone. (Sat Pal Vs State of Punjab) 2002(3) Criminal Court Cases 151 (P&H)
Dishonour of cheque – Accused taking loan and issued cheque against it and also gave security – Complaint u/s 138 is competent even if drawee had alternative remedy to realise the amount of loan by sale of securities. (Jauss Polymers Ltd. & Anr. Vs M/s.Sawhney Brothers) 2003(1) Criminal Court Cases 323 (Delhi)
Dishonour of cheque – Affidavits and documents in support of complaint – Magistrate has power to accept affidavit of the complainant and witnesses, if any and to proceed further without recording statements under S.200 Cr.P.C. (Pankaj Kapoor Vs State) 2003(3) Civil Court Cases 57 (Delhi)
Dishonour of cheque – Amendment of complaint – Complaint filed against proprietorship concern through its proprietor but name of its proprietor not mentioned – Name of proprietor sought to be inserted by way of amendment – Amendment allowed. (Maan Agro Centre Vs Eid Parry (India) Ltd. & Anr.) 2005(2) Civil Court Cases 254 (Bombay) : 2005(2) Criminal Court Cases 392 (Bombay)
Dishonour of cheque – Amount was due to complainant by father of accused and not by accused – Cheque not issued by accused to pay his father’s debt but was taken by force from him by complainant – Prosecution of accused for bouncing of cheque is not legal – Accused acquitted and his conviction and sentence set aside. (Gundepaneni Nagabushanam Vs T.Eswar Rao) 2003(2) Civil Court Cases 393 (A.P.) : 2003(2) Criminal Court Cases 651 (A.P.)
Dishonour of cheque – Cheque amount if made within 15 days of receipt of notice or before the complaint is filed the legal liability u/s 138 ceases to operate and for recovery of other demands such as compensation, costs, interest etc. separate proceedings lie. (K.R.Indira Vs Dr.G.Adinarayana) 2004(1) Criminal Court Cases 232 (S.C.)
Dishonour of cheque – Cheque amount Rs.Three lacs – Sentence of simple imprisonment of one month – Compensation of Rs.3,10,000 payable under S.357(3) Cr.P.C. and in default of payment of compensation further simple imprisonment of sixty days. (Anilkumar Vs Shammy) 2003(1) Civil Court Cases 292 (Kerala) : 2003(1) Criminal Court Cases 269 (Kerala)
Dishonour of cheque – Cheque can be issued by a person to discharge the legally enforceable debt or liability of another person and under S.138 of the Act, it is not necessary that cheque must have been drawn by the person for his own debt or liability. (Ritaben Ashokbhai Shah Vs Sanjay Kanubhai Sheth & Anr.) 2004(1) Criminal Court Cases 57 (Gujarat)
Dishonour of cheque – Cheque in the name of firm – Complaint by proprietor of the firm – No relief can be granted if it is not established that business concern mentioned as payee of the cheque is owned by the complainant. (Dassan Vs Ranimol) 2003(1) Civil Court Cases 314 (Kerala)
Dishonour of cheque – Cheque issued in discharge of liability of another – Such a cheque does not fall outside the purview/sweep of the provisions of S.138 of Negotiable Instruments Act. (Sanal Kumar Vs Rajeev Kumar) 2004(2) Criminal Court Cases 545 (Kerala)
Dishonour of cheque – Cheque issued towards part payment of land agreed to be sold by complainant and payment stopped as complainant found to have no title in land – Though balance sale consideration to be paid under agreement cannot be squarely construed as debt, it could come under expression “other liability” – Petitioner could not take validly the plea of non existence of debt or liability. Lawyer for cheque Bouncing Matter (Mandadi Ram Reddy & Anr. Vs State of A.P. & Anr.) 2004(1) Criminal Court Cases 17 (A.P.)
Dishonour of cheque – Cheque returned by bank with endorsement “account closed” – It amounts to returning of cheque unpaid – Accused held guilty under S.138 of Negotiable Instruments Act. (Jaspal Singh Bedi Vs State of Punjab & Anr.) 2005(2) Civil Court Cases 292 (P&H) : 2005(2) Criminal Court Cases 596 (P&H)
Dishonour of cheque – Company – Notice issued to Company – Separate notice to Director or officer-in-charge of the affairs of the company is not required – Directors become liable to be prosecuted and punishable by virtue of S.141 of the Act which do not require separate notice. (Wg.Cdr.R.R.J Dass Vs Satya Bhama Lal) 2003(2) Criminal Court Cases 276 (Delhi)
Dishonour of cheque – Compensation – Normally in a successful prosecution u/s 138, a direction under S.357 Cr.P.C. must follow. (Anilkumar Vs Shammy) 2003(1) Civil Court Cases 292 (Kerala) : 2003(1) Criminal Court Cases 269 (Kerala)
Dishonour of cheque – Complaint – Amendment – Cheque number and date of information received from bank sought to be amended – Held, trial Court has inherent power to allow to rectify typographical mistakes to do justice between the parties – Criminal Courts have an auxiliary power subject to restrictions which justice, equity, good conscience and legal provisions demand provided it will not unnecessarily prejudice somebody else – Amendment allowed. (Bhim Singh Vs Kan Singh) 2004(2) Civil Court Cases 608 (Rajasthan) : 2004(2) Criminal Court Cases 232 (Rajasthan)
Dishonour of cheque – Complaint – Cannot be referred to police for investigation u/s 156(3) Cr.P.C. (S.Jayaswami & Anr. Vs State of Orissa & Anr.) 2005(2) Civil Court Cases 138 (Orissa) : 2005(2) Criminal Court Cases 369 (Orissa)
Dishonour of cheque – Complaint – Period of one month for filing complaint has to be reckoned from the date immediately following the day on which the period of 15 days from the date of receipt of notice by the drawer expires. (Krishnankutty Nair Vs Ashokan) 2005(1) Civil Court Cases 678 (Kerala) : 2005(2) Criminal Court Cases 07 (Kerala)
Dishonour of cheque – Complaint – Pre-mature – Cognizance taken when cause of action had arisen – Complaint not liable to be dismissed. (Bapulal Vs Kripachand Jain) 2004(1) Criminal Court Cases 803 (M.P.)
Dishonour of cheque – Complaint – Procedure contemplated under Ss.200 to 203 Cr.P.C. has to be followed by the Magistrate. (M/s RBF Nidhi Ltd. Vs State of A.P.) 2003(2) Criminal Court Cases 178 (A.P.)
Dishonour of cheque – Complaint against husband and wife – Cheque issued by wife – No allegation in complaint that husband has been doing business alongwith his wife and that the cheques were issued in discharge of her liability – Held, proceedings against husband not sustainable. (Dharmendra Kumbhat & Ors. Vs State of Rajasthan & Ors.) 2005(1) Civil Court Cases 768 (Rajasthan)
Dishonour of cheque – Complaint against husband and wife – Cheque issued by wife – No allegation in complaint that husband has been doing business alongwith his wife and that the cheques were issued in discharge of her liability – Held, proceedings against husband not sustainable. (Dharmendra Kumbhat & Ors. Vs State of Rajasthan & Ors.) 2005(1) Civil Court Cases 768 (Rajasthan) : 2005(2) Criminal Court Cases 206 (Rajasthan)
Dishonour of cheque – Complaint barred by limitation or that complainant manipulated bank memo to cover demand notice within limitation of 15 days – Such pleas to be agitated before Magistrate at the time of trial. Lawyer for cheque Bouncing Matter (Mandadi Ram Reddy & Anr. Vs State of A.P. & Anr.) 2004(1) Criminal Court Cases 17 (A.P.)
Dishonour of cheque – Complaint can be filed within one month of service of notice, in case of non payment – One month for filing complaint is to be reckoned from the day immediately following the day on which the period of fifteen days from the date of receipt of notice by the drawer expires. (M/s.Pram Chand Vijay Kumar Vs Yash Pal Singh & Anr.) 2005(2) Criminal Court Cases 742 (S.C.)
Dishonour of cheque – Contention that A-5 was not the Director of the company by the date cheques were issued – It is a question of fact to be decided by trial Court after recording evidence. (S.P.Subramaniam & Ors. Vs Vasavi Cotton Traders) 2002(3) Criminal Court Cases 275 (A.P.)
Dishonour of cheque – Conviction in two separate cases – Sentences to run concurrently. (Satpal Chaudhary Vs Kuldip Mahajan & Anr.) 2004(2) Civil Court Cases 140 (P&H) : 2003(3) Criminal Court Cases 666 (P&H)
Dishonour of cheque – Death of accused during trial – Proceedings will abate – Legal heirs cannot be prosecuted. (Sham Lal Vs Raj Kumar Aggarwal) 2002(2) Criminal Court Cases 505 (P&H)
Dishonour of cheque – Death of complainant – Son of complainant who is successor to the business must be deemed to be “holder in due course”. (Ajay Kumar Agarwal & Anr. Vs State of Jharkhand & Anr.) 2003(2) Criminal Court Cases 600 (Jharkhand)
Dishonour of cheque – Debt or liability – Accused took 150 grams of gold from complainant which he did not return – On pressure of police accused issued cheque towards payment of price of gold – Presumption of discharging of liability stands rebutted – Transaction with regard to gold is of civil nature – Police had no business to put pressure on the accused to execute cheque. Lawyer for cheque Bouncing Matter (V.A.Sivaraman Vs Vasu) 2003(2) Criminal Court Cases 496 (Kerala)
Dishonour of cheque – Delay in filing complaint – Court has no power to condone delay – S.5 Limitation Act is not applicable. (Agricultural Market Committee, Adoni Vs Sankar Rao & Co. ) 2004(3) Criminal Court Cases 628 (A.P.)
Dishonour of cheque – Demand notice – Within 15 days of service of notice accused made certain payment and pleaded for some more time – Accused is deemed to have impliedly waived notice before the cause of action had arisen – Complaint on second presentation of cheque and notice is maintainable. (Lok Housing & Constructions Ltd. Vs M/s.DCM Daevoo Motors Ltd.) 2003(1) Criminal Court Cases 195 (Delhi)
Dishonour of cheque – Dismissal of complaint for non prosecution – Complaint restored – Held, order of Magistrate restoring complaint is without jurisdiction. (Ram Bhaj Jain Vs M/s Brar Rice & General Mills) 2003(1) Civil Court Cases 615 (P&H) : 2003(1) Criminal Court Cases 703 (P&H)
Dishonour of cheque – Execution of cheque admitted as such consideration thereunder is presumed – Holder has implied authority to put date on undated cheque and the same does not amount to material alteration – No ground to quash proceedings. (Sunil Kumar Tyagi Vs State of Rajasthan) 2003(1) Civil Court Cases 217 (Rajasthan)
Dishonour of cheque – Husband and wife jointly doing business – Cheque issued by husband to discharge legal liability of wife – Cheque neither issued nor signed by wife nor the account maintained by her – Husband is liable – Proceedings against wife quashed. (Ritaben Ashokbhai Shah Vs Sanjay Kanubhai Sheth & Anr.) 2004(1) Criminal Court Cases 57 (Gujarat)
Dishonour of cheque – Insertion of date on an undated cheque – By itself does not amount to material alteration so as to render the cheque void. (Sunil Kumar Tyagi Vs State of Rajasthan) 2003(1) Civil Court Cases 217 (Rajasthan)
Dishonour of cheque – Notice – Proceedings sought to be quashed for non receipt of notice – Question whether notice has been served or not is to be decided on the basis of evidence led during trial and not at the stage of filing of complaint – Proceedings cannot be quashed on the ground of insufficiency of service of notice without a decision of the trial Court on the issue. (Chiman Lal & Ors. Vs M/s.Shree Ganesh Oil Industries, Fazilka) 2004(2) Criminal Court Cases 225 (P&H)
Dishonour of cheque – Notice – Has to be given within 15 days of receipt of information from bank – If no notice is given within 15 days, no cause of action arises to file complaint. (M/s.Pram Chand Vijay Kumar Vs Yash Pal Singh & Anr.) 2005(2) Criminal Court Cases 742 (S.C.)
Dishonour of cheque – Notice – Registered notice received back with endorsement “Left without information” – It means the accused avoided service – There is presumption of service of notice. (Chiman Lal & Ors. Vs M/s.Shree Ganesh Oil Industries, Fazilka) 2004(2) Criminal Court Cases 225 (P&H)
Dishonour of cheque – Notice issued – Drawer sought some time to make the payment – On request of drawer cheque again presented – Cheque again dishonoured – Notice issued and on failure to make the payment complaint filed – Cause of action accrues only once – Complaint on the basis of dishonour of cheque for the second time is not maintainable. (M/s.Pram Chand Vijay Kumar Vs Yash Pal Singh & Anr.) 2005(2) Criminal Court Cases 742 (S.C.)
Dishonour of cheque – Notice issued – Respondent sought some more time – Failure to make payment as promised – Cheque against presented, again dishonoured and a fresh notice issued and complaint filed on failure to make payment – Cause of action to file complaint arose on failure to make payment on issuance of first notice and the same cannot be stopped to run by a promise to make payment – Complaint is barred by limitation. (N.G.Somashekar Vs S.V.Shivaprasad) 2003(2) Civil Court Cases 456 (Karnataka)
Dishonour of cheque – Police is not empowered to investigate into a complaint involving an offence under S.138 of the Act. (S.Jayaswami & Anr. Vs State of Orissa & Anr.) 2005(2) Criminal Court Cases 369 (Orissa) : 2005(2) Civil Court Cases 138 (Orissa)
Dishonour of cheque – Post dated cheque issued as collateral security – Provision of S.138 is not attracted as there was no subsisting liability or debt on the date of issue of cheque – Proceedings quashed. (Lalan Prasad Vs State of Jharkhand & Ors.) 2005(1) Criminal Court Cases 358 (Jharkhand)
Dishonour of cheque – Pre-mature complaint – Condition of expiry of 15 days after notice applies to taking cognizance and not to filing of complaint which can be kept pending as premature till prescribed time. (Mahendra Agrawal Vs Gopi Ram Mahajan) 2002(3) Criminal Court Cases 527 (Rajasthan)
Dishonour of cheque – Pre-mature complaint – It can await maturity or be returned to the complaint for filing later and its mere presentation at an early date need not necessarily render the complaint liable to be dismissed or confer any right upon the accused to absolve himself from the criminal liability for the offence committed. Lawyer for cheque Bouncing Matter(Mahendra Agrawal Vs Gopi Ram Mahajan) 2002(3) Criminal Court Cases 527 (Rajasthan)
Dishonour of cheque – Sister concerns – Cheque issued to discharge the liability of company ‘A’ drawn on account of company ‘B’ which is a sister concern of company ‘A’ – Held, company ‘A’ cannot escape the liable on the premise that it is not the maker or drawer of the cheque. (Sunrise Oleo Chemicals Ltd. Vs M/s.K.M.Enterprises) 2003(2) Criminal Court Cases 567 (A.P.) : 2003(3) Civil Court Cases 35 (A.P.)
Dishonour of cheque ‘ “Refer to drawer” – Means dishonour is on ground of insufficiency of funds. (Rajan Vs Sharafudheen) 2003(2) Civil Court Cases 638 (Kerala)
Four cheques clubbed in one complaint – Complaint not to be quashed – It is not such a defect which goes to the root of the matter. (M/s Kumar Rubber Industries Vs Sohan Lal) 2002(2) Criminal Court Cases 83 (P&H)
Interest warrant – Provision of S.138 apply where interest warrant is dishonoured. (Ashok Chaturvedi Vs Dr.(Mrs.) Nirmala Jaywant Patil) 2003(1) Civil Court Cases 652 (Bombay) : 2003(1) Criminal Court Cases 619 (Bombay)
Joint Account Holder – Account could be operated by either of them – Cheque issued by one to discharge his liability – Account holder who has not drawn the cheque is not liable u/s 138 of the Act. (Devi Vs Haridas) 2004(3) Civil Court Cases 649 (Kerala) : 2005(1) Criminal Court Cases 285(Kerala)
Jurisdiction – Cheque drawn on bank at Bombay, transactions took place between parties at Bombay – Cheque presented in Delhi bank and demand notice issued in Delhi – Held, Court at Delhi has jurisdiction to try the complaint. (Lok Housing & Constructions Ltd. Vs M/s.DCM Daevoo Motors Ltd.) 2003(1) Criminal Court Cases 195 (Delhi)
Limitation – One month – Period of one month cannot be read/taken as period of 30 days. (Srikanth P.Hutagee Vs Gangadhar S.Hutagekar) 2004(3) Civil Court Cases 493 (Karnataka)
List of witnesses – Not filed – In absence of list of witnesses neither the proceedings can be dropped nor are these vitiated. (K.S.Juneja & Anr. Vs Embassy of Uruguay in India & Anr.) 2004(1) Criminal Court Cases 133 (Delhi)
Loan taken from finance company – Promissory notes for various amounts executed – There was no reason to issue cheque at the same time – This probabilises that cheque was issued only as a guarantee for the amount payable by the accused. (Sri Murugan Financiers Vs P.V.Perumal) 2005(1) Criminal Court Cases 696 (Madras) : 2005(1) Civil Court Cases 665 (Madras)
Notice – ‘Receipt of information’ – Relevant date is the date of receipt of intimation and not the date of letter of intimation. (Amina Vs Baby) 2005(1) Civil Court Cases 158 (Kerala) : 2005(1) Criminal Court Cases 277(Kerala)
Notice – Absence of specific pleading in complaint as to service of notice – Notice had in fact been sent and this fact has come in preliminary evidence – Complaint cannot be quashed on this ground u/s 482 Cr.P.C. (Gian Singh Vs Oswal Steels) 2005(2) Civil Court Cases 277 (P&H) : 2005(2) Criminal Court Cases 768 (P&H)
Notice – Addressed to correct address but misdescription of address in notice – Benefit of doubt does not go to accused. (O.P.Gaur Vs O.P.Goel & Anr.) 2004(1) Criminal Court Cases 09 (Delhi)
Notice – Company – Notice served upon sister concern – It is for complainant to prove that acknowledgement issued was by some one authorised on behalf of accused company and not by any body from sister concern – PW 1 examined on behalf of company on point had no knowledge who had put initials and whether person putting seal on initial was authorised by accused company to receive notice – Notice was not addressed to any specific individual but simply to Director – Order of acquittal – No interference. (D.C.W.Home Products Ltd. Vs State of Maharashtra & Ors.) 2005(1) Criminal Court Cases 244 (Bombay) : 2005(1) Civil Court Cases 736 (Bombay)
Notice – Date of service – Complaint alleged to be premature – Date of service of notice not indicated on postal acknowledgment – It is the function of the person receiving the notice to place the date of receipt of notice. (Raghubhai Surabhai Bharwad Vs Satishkumar Ranchhoddas Patel & Anr.) 2004(2) Civil Court Cases 300 (Gujarat) : 2004(2) Criminal Court Cases 264 (Gujarat)
Notice – Death of payee within two days – Complaint by L.R’s – Not maintainable – Drawer could not comply with the notice to make payment within 15 days – The liability to search and find out the legal heirs to pay the amount covered by the cheque to them within the period of 15 days prescribed is not obviously be read into a penal provision like S.138 N.I. Act. (Syamala Vs Gopakumar) 2003(3) Civil Court Cases 19 (Kerala) : 2003(3) Criminal Court Cases 06 (Kerala)
Notice – Demand made not of the cheque amount but only the loan amount – Further demands were also made – Demand of cheque amount was conspicuously absent – Notice is invalid not for the reason that further demands were also made but for the reason that it did not specifically contain any demand for the payment of the cheque amount. Lawyer for cheque Bouncing Matter (K.R.Indira Vs Dr.G.Adinarayana) 2004(1) Criminal Court Cases 232 (S.C.)
Notice – Drawee informing accused of dishonour of cheque – This cannot be construed as demand notice in writing as required under S.138 of Negotiable Instruments Act. (Chacko Vs Joseph) 2003(3) Criminal Court Cases 77 (Kerala)
Notice – Indication of any other sum other than amount of cheque – Notice is not invalidated. (K.R.Indira Vs Dr.G.Adinarayana) 2004(1) Criminal Court Cases 232 (S.C.)
Notice – Is required to be served on the drawer and not on the person who has signed the cheque on behalf of the drawer – In case of a company notice is required to be served on the company who is the drawer of the cheque and not on the signatories/Directors of the company who are incharge and responsible officer of the company as they face indictment u/s 141 of the Company – A person facing indictment under section 141 of the Act is not entitled to notice. (Target Overseas Exports (P) Ltd. Vs Iqbal) 2005(2) Civil Court Cases 86 (Kerala) : 2005(2) Criminal Court Cases 490 (Kerala)
Notice – Limitation of 15 days – Starts from the date when accused actually receives the notice or the date on which the accused can receive the notice. (Chacko Vs Joseph) 2003(3) Criminal Court Cases 77 (Kerala)
Notice – Loan from two persons – Consolidated notice – Is valid if it provides sufficient information envisaged by the statutory provision and there is specific demand for the payment of the sum covered by the cheque dishonoured. (K.R.Indira Vs Dr.G.Adinarayana) 2004(1) Criminal Court Cases 232 (S.C.)
Notice – Must be for the payment covered by cheque – If demand is for a lesser amount or for a higher amount not covered by the cheque, which was dishonoured, then the prosecution must fail as the statutory requirement of S.138 Proviso (b) is not fulfilled. (TCI Finance Ltd. Vs State of A.P.) 2004(4) Criminal Court Cases 708 (A.P.)
Notice – Not given within 15 days of intimation of dishonour of cheque – Delay cannot be condoned either u/s 5 Limitation Act or u/s 473 Cr.P.C. – Complaint quashed. (S.V.Muthye Vs State) 2002(2) Criminal Court Cases 190 (Delhi)
Notice – Not issued within 15 days of receipt of notice from bank regarding dishonour of cheque – Notice is not valid. (Srikanth P.Hutagee Vs Gangadhar S.Hutagekar) 2004(3) Civil Court Cases 493 (Karnataka)
Notice – Once issued, though unserved, complainant forfeits his right to present the cheque again – If notice issued within time and the same is not served for any reason, complainant is not bared to issue another notice even though it exceeds the period of fifteen days – Presentation of cheque again on the ground that notice issued originally was returned unserved, instead of taking recourse to issue notice a second time, not legal and does not save the period of limitation. (Sunrise Oleo Chemicals Ltd. Vs M/s.K.M.Enterprises) 2003(2) Criminal Court Cases 567 (A.P.) : 2003(3) Civil Court Cases 35 (A.P.)
Notice – Part payment made – Cheque presented for the entire amount and dishonoured – Notice issued for the balance amount due – As demand is for the lesser amount than covered by the cheque as such it is not a valid notice – Accused is entitled for acquittal. (TCI Finance Ltd. Vs State of A.P.) 2004(4) Criminal Court Cases 708 (A.P.)
Notice – Received back unserved – Period of 15 days starts from the date when complainant actually received back the unserved notice. (Chacko Vs Joseph) 2003(3) Criminal Court Cases 77 (Kerala)
Notice – Received by wife of the petitioner – Notice is duly served upon petitioner. (Raghubhai Surabhai Bharwad Vs Satishkumar Ranchhoddas Patel & Anr.) 2004(2) Civil Court Cases 300 (Gujarat) : 2004(2) Criminal Court Cases 264 (Gujarat)
Notice – Registered notice returned with endorsement ‘continuously 7 days absent’ – A person going out of station for seven days without taking care to make arrangement for receiving the mail addressed to him by registered post, in his name, should suffer the consequences for his lapse – He cannot make his laches and negligence a ground of defence in the proceeding initiated by his creditors – Complaint cannot be dismissed at the threshold for this ground which can only be decided after the parties adduce evidence. Lawyer for cheque Bouncing Matter(Dr.Yalamachili Vs Nalgonda District Co-op.Central Bank) 2003(2) Criminal Court Cases 353 (A.P.)
Notice – Returned as unclaimed – Presumption of service – Not available if notice is not addressed to correct address. (Suresh Kumar Vs Sasi) 2003(2) Civil Court Cases 531 (Kerala)
Notice – Returned with endorsement “Intimated-Unclaimed” – Deemed service of notice – In absence of an averment in the complaint that accused is evading service, presumption as to deemed notice cannot be raised. (S.S.Ummul Habiba, Proprietor, M/s.Alim Auto supplies Vs B.Rajendran) 2004(4) Criminal Court Cases 423 (Madras)
Notice – Returned with postal endorsement “Left, not known” – It has to be taken as deemed service. (Fakirappa Vs Shiddalingappa & Anr.) 2002(1) Criminal Court Cases 689 (Kant.)
Notice – Sent as per registered post and also through certificate of posting – Notice sent as per registered post received back with postal endorsement “addressee left” – No evidence led that notice sent under certificate of posting was in fact served on drawer of cheque – No proper service of notice – Complaint therefore not maintainable. (K.Annaji Rao Vs N.Krishna Raju Sekhar & Anr.) 2004(3) Civil Court Cases 547 (A.P.)
Notice – Sent as per registered post and certificate of posting – Notice sent as per registered post received back with endorsement ‘continuously 7 days absent’ – Plea that drawer after having received notice sent under certificate of posting managed to return the notice sent as per registered post – Notice sent by post to correct address either by registered post or otherwise, there is presumption that it is received by the addressee – This presumption is rebuttable – There is presumption that notice sent as per certificate of posting was received by the addressee – As service of notice by registered post is not mandatory it cannot be said that the condition precedent of service of notice of demand is not satisfied – Proceedings cannot be quashed. (Evidence Act, 1872, S.114, General Clauses Act, 1897, S.27). (Dr.Yalamachili Vs Nalgonda District Co-op.Central Bank) 2003(2) Criminal Court Cases 353 (A.P.)
Notice – Sent as per registered post and under Certificate of Posting – There is presumption of service of notice sent under certificate of posting u/s 114 of Evidence Act. (C.E.I. Consultancy Vs M/s Modi World Infotech) 2002(3) Criminal Court Cases 218 (A.P.)
Notice – Sent as per registered post and under certificate of posting at correct address – Notice sent as per registered post received back with postal endorsement ‘Unclaimed’ – There is presumption of service of notice. Lawyer for cheque Bouncing Matter (N.E.Varghese Vs State of Kerala) 2002(3) Criminal Court Cases 179 (Kerala)
Notice – Sent by Registered post at correct address – Notice received back with postal endorsement “house locked” – Complaint cannot be dismissed at the threshold on the ground that there is no proper service of notice – Notice whether has been served has to be decided during trial – Burden is on complainant to show that accused managed to get an incorrect postal endorsement made and what is the effect of it has to be considered during trial. (V.Raja Kumari Vs P.Subbarama Naidu) 2005(1) Criminal Court Cases 354 (S.C.) : 2005(1) Civil Court Cases 681 (S.C.)
Notice – Sent deliberately at wrong address – Complaint filed before expiry of 15 days of issuance of notice – Order of taking cognizance quashed. (Rama Chandra Panigrahi Vs State of Orissa & Anr.) 2003(3) Civil Court Cases 385 (Orissa) : 2003(3) Criminal Court Cases 314 (Orissa)
Notice – Sent through registered cover at correct address – Accused not available at his residence, deliberately or otherwise, as such notice received back unserved – Date of service of notice will be presumed when complainant got back the unserved notice. (Chacko Vs Joseph) 2003(3) Criminal Court Cases 77 (Kerala)
Notice – Sent without signatures of Advocate on it – Notice received by drawer – Held, there is sufficient compliance with the provision and all other contentions to the contrary cannot be accepted at all. (Janardhanan Vs Jayachandran) 2005(2) Civil Court Cases 165 (Kerala) : 2005(2) Criminal Court Cases 590 (Kerala)
Notice – Slight variation between amount of cheque amount and that mentioned in notice – Does not invalidate notice – Notice is to be construed, not with a view to find fault with it, but is to be construed with view to give effect to it. (Sri Krishna Bhupathi Vs Chandana Constructions) 2004(2) Civil Court Cases 86 (Karnataka) : 2004(2) Criminal Court Cases 47 (Karnataka)
Notice – Typographical mistake as to presentation of cheque, date of its dishonour etc. – Held, hyper technical view should not be taken when material is there on record to reveal the substance of the notice – Accused cannot be permitted to take advantage of the typing mistake. (M/s.Krishna Kumar Vinod Kumar & Ors. Vs State of U.P. & Anr.) 2004(1) Criminal Court Cases 545 (Allahabad)
Notice issued to payee not to present cheque – Cannot prevent payee from presenting cheque to his Bank for collection of amount and from instituting criminal proceedings on dishonour of cheque. (G.P.R.Housing Private Limited, Bangalore & Anr. Vs K.Venugopala Krishna) 2004(2) Civil Court Cases 170 (Karnataka) : 2004(2) Criminal Court Cases 24 (Karnataka)
Offence u/s 138 – Facts to be proved are: (a) that the cheque was drawn for payment of an amount of money for discharge of a debt/liability and the cheque was dishonoured; (b) that the cheque was presented within the prescribed period; (c) that the payee made a demand for payment of the money by giving a notice in writing to the drawer within the stipulated period; and (d) that the drawer failed to make the payment within 15 days of the receipt of the notice. (M/s.Pram Chand Vijay Kumar Vs Yash Pal Singh & Anr.) 2005(2) Criminal Court Cases 742 (S.C.)
Offence u/s 138 Negotiable Instruments Act is compoundable. (M/s.Jai Maa Bhawani Financiers Pvt. Ltd. Pathankot Vs Muni Lal Kamal Kishore, Shahpur, Distt. Kangra) 2004(2) Criminal Court Cases 172 (P&H)
Original cheque lost – Secondary evidence – Photocopy of cheque already on record – If cheque is really lost it would be improper and incorrect to deny the complainant an opportunity to substantiate his grievance by adducing secondary evidence as permitted under S.65 of Evidence Act. (Evidence Act, 1872, S.65). (Chitaranjan Vs Jayarajan) 2005(1) Civil Court Cases 810 (Kerala)
Part payment made – Part payment remained unpaid even after expiry of 15 days from the date of receipt of notice – Accused has committed the offence u/s 138 NI Act. (Thekkan & Co. Vs Anitha) 2004(1) Criminal Court Cases 65 (Kerala) : 2004(2) Civil Court Cases 13 (Kerala)
Partnership firm – Dishonour of cheque – Prosecution of a partner – Incharge and responsible – Not required to be specifically stated in the complaint – Substance of complaint must show that he was incharge and responsible for conduct of business of firm. (Inder Sehgal Vs M/s Thakar Petro Chemicals Ltd.) 2003(3) Criminal Court Cases 580 (P&H) : 2004(2) Civil Court Cases 18 (P&H)
Partnership firm – Sleeping partner or that cheque is signed by another partner – Every person who is incharge and is responsible for conducting the business is responsible for the offence u/s 138 NI Act – Order dismissing petition for discharge of petitioner suffers no illegality. (Poonam Mahajan Vs Mohan Lal Swara) 2003(3) Criminal Court Cases 266 (J&K)
Partnership firm – Unregistered – Complaint by partner of an unregistered firm is maintainable as S.69 Partnership Act is not applicable to criminal proceedings. (Bhavani Agencies, Bangalore Vs G.C.Colour Lab, Bangalore & Anr.) 2004(2) Civil Court Cases 55 (Karnataka) : 2004(2) Criminal Court Cases 219 (Karnataka)
Partnership firm – Unregistered firm can prosecute criminal complaint regarding dishonour of cheque – S.69(2) Partnership Act is not applicable as it bars filing of a civil suit and not a criminal complaint. (Beacon Industries, Banglore Vs Anupam Ghosh) 2004(1) Criminal Court Cases 348 (Karnataka) : 2004(2) Civil Court Cases 231 (Karnataka)
Payment of cheque amount after institution of complaint – Does not wipe off the offence. (Jauss Polymers Ltd. & Anr. Vs M/s.Sawhney Brothers) 2003(1) Criminal Court Cases 323 (Delhi)
Payments made before the presentation of cheque and before receipt of notice – Nothing precludes a Court from taking into account prior payments made before the presentation of the cheque or before the receipt of notice in deciding whether the amount due under the cheque has been paid. (Thekkan & Co. Vs Anitha) 2004(1) Criminal Court Cases 65 (Kerala) : 2004(2) Civil Court Cases 13 (Kerala)
Post dated cheque – It is bill of exchange till its date due for presentation – Six months period of its presentation is to be calculated from the date written on the cheque. (Wg.Cdr.R.R.J Dass Vs Satya Bhama Lal) 2003(2) Criminal Court Cases 276 (Delhi)
Post dated cheque – Stop payment before the due date of payment – Held, S.138 of the Act is attracted. (Goaplast Pvt.Ltd. Vs Shri Chico Ursula D’Souza & Anr.) 2003(2) Civil Court Cases 01 (S.C.) : 2003(1) Apex Court Judgments 506 (S.C.) : 2003(2) Criminal Court Cases 450 (S.C.)
Post dated cheque issued against loan taken for motor vehicle on hire purchase basis – Default in repayment of loan – Possession of vehicle taken by owner – Hire purchase agreement is thus terminated – Dishonour of cheque – Held, when cheque is presented and dishonoured after termination of hire purchase agreement then no offence is made out u/s 138 Negotiable Instruments Act. (Sudha Beevi Vs State of Kerala) 2004(3) Criminal Court Cases 472 (Kerala) : 2004(2) Civil Court Cases 553 (Kerala)
Pre-mature complaint – Magistrate took cognizance by recording statement of complainant – Cognizance was taken prior to date of cause of action – Complaint was premature having been filed before accrual of cause of action – Proceedings quashed. (Mani Mittal Vs State of U.P. & Ors.) 2004(3) Criminal Court Cases 223 (Allahabad)
Pre-mature complaint – Not to be dismissed – At best, complaint can be adjourned and further proceedings commenced after expiry of 30 days. (Sunil Kumar Vs Yog Raj) 2002(3) Criminal Court Cases 88 (P&H)
Proprietorship concern – Complaint can either be filed by proprietorship firm through its proprietor or by proprietor in his individual capacity. (M/s Bedi Sons Steels & Wires Vs M/s B.G.Brothers) 2002(2) Criminal Court Cases 41 (P&H) : 2002(2) Criminal Court Cases 553 (P&H)
Proprietorship concern – It can be described as M/s ABC through its proprietor (Name of proprietor) or proprietor (name of proprietor) of firm M/s ABC etc. – It makes no difference – It does not cause any prejudice to the accused. (Maan Agro Centre Vs Eid Parry (India) Ltd. & Anr.) 2005(2) Civil Court Cases 254 (Bombay) : 2005(2) Criminal Court Cases 392 (Bombay)
Proprietorship concern – It is not necessary to implead the proprietary concern as a party when it is a sole proprietary concern. (Shivaraj Vs Gurudeva) 2004(1) Criminal Court Cases 714 (Karnataka) : 2004(2) Civil Court Cases 520 (Karnataka)
Proprietorship firm – Cheque issued by proprietor – Firm need not to be impleaded as a party – Proceedings can be launched against the person who had drawn the cheque whether it is in his capacity as the proprietor of the firm or in personal capacity. (Babu Vs Suresh) 2004(3) Civil Court Cases 259 (Kerala) : 2004(3) Criminal Court Cases 614 (Kerala)
Provision – Applicability – It is legally perverse to say that provision is applicable only in case of transaction involving Mercantile relationship. (Goa Plast (P) Ltd. Vs Chico Ursula D’Souza) 2004(1) Apex Court Judgments 273 (S.C.) : 2004(1) Criminal Court Cases 693 (S.C.) : 2004(2) Civil Court Cases 577 (S.C.)
Provision – Applicability – When it is a legally enforceable debt or liability then S.138 applies and relationship of parties is not at all a factor germane to the proceeding. (Goa Plast (P) Ltd. Vs Chico Ursula D’Souza) 2004(1) Apex Court Judgments 273 (S.C.) : 2004(1) Criminal Court Cases 693 (S.C.) : 2004(2) Civil Court Cases 577 (S.C.)
Purchaser of cheque – Is a holder-in-due-course – It is not necessary that in favour of purchaser of the cheque there should be an endorsement also. (D.H.Bhatter Vs State Bank of Bikaner & Jaipur) 2003(1) Criminal Court Cases 364 (Bombay)
Repeated presentation of cheque within its validity period – Cheque can be presented any number of times before issuance of notice – Complaint can be filed on the basis of cause of action of last dishonour. (Avtar Singh Vs Joginder Singh) 2004(2) Criminal Court Cases 760 (P&H)
Revision against conviction – Death of complainant during pendency of revision – L.R’s allowed to be brought on record as financial benefit has accrued by order of conviction. (Mohinder Dutt Sharma Vs Bhagat Ram) 2002(2) Criminal Court Cases 297 (H.P.)
Security – Loan taken – Agreement executed to repay loan within six months and cheque issued as security to be encashed in case of failure to pay loan amount – Loan not paid – Cheque which had been issued as security transforms itself into a cheque representing liability in terms of agreement – Accused is guilty of offence u/s 138 of the Act. (M.A.Mohana Pai Vs V.A.Jabbar & Anr.) 2005(1) Criminal Court Cases 743 (Kerala) : 2005(1) Civil Court Cases 797 (Kerala)
Six cheques – Joint trial – If cheques were issued as part of the same transaction then all the cases can be jointly tried. (Mohammed Vs State of Kerala) 2005(1) Civil Court Cases 09 (Kerala)
Sleeping partner – Proceedings not to be quashed against a partner on ground that he was a sleeping partner – Disputed question of fact be decided during trial. (Shakti Bhakoo Vs Varun Khemka) 2003(2) Civil Court Cases 358 (P&H) : 2003(2) Criminal Court Cases 237 (P&H)
Sole proprietorship firm – Proprietor was the complainant company – Held, complaint can be filed by any person connected with company may be its Director or Manager or any other person so authorised. (M/s EITA India Ltd. Vs NCT of Delhi) 2002(3) Criminal Court Cases 126 (Delhi)
Time barred debt – Cheque issued – When a person issues a cheque he acknowledges his liability to pay – In event of dishonour of cheque he is not entitled to claim that the debt had become barred by limitation and that the liability was not thus enforceable. (Ramakrishnan Vs Parthasaradhy) 2003(3) Civil Court Cases 228 (Kerala) : 2003(3) Criminal Court Cases 145 (Kerala)
Unsigned complaint – Defect not noticed by Magistrate and complainant was examined u/s 200 on same day and his signatures were taken on verification and process was issued – Held, non signing of complaint does not go to root of the matter and is a mere technical irregularity. (Vijay Vs Ramchandra) 2003(2) Criminal Court Cases 473 (Bombay) : 2003(1) Civil Court Cases 343 (Bombay)
Witnesses not turning up despite service of summons – Evidence closed – Held, it is duty of Court to compel appearance of witnesses – Order of closer of evidence is improper – Trial Court directed to compel appearance of witnesses. (Neelam Sharma Vs M/s.Sri Gangadas Irrigation System) 2004(1) Criminal Court Cases 171 (Rajasthan) : 2004(2) Civil Court Cases 114 (Rajasthan)
‘Receipt of information’ – Means receipt of information from bank in writing – Oral information is not sufficient. (Immanuel Vs Rajappan) 2004(1) Criminal Court Cases 652 (Kerala) : 2004(2) Civil Court Cases 221 (Kerala)
“Within thirty days” – Means information received from the bank where cheque is presented for collection and not from information sent by drawer’s bank to payee’s bank. (Ajay Gupta Vs State of Maharashtra & Anr.) 2004(3) Civil Court Cases 461 (Bombay)
Notice – Amount not paid and second notice sent – Complaint filed thereafter beyond 30 days of issuance of the first notice – Burden is on the complainant to prove that there was no demand in the first notice and that it was only an intimation. (Koshy Titus Vs Crystal Biscuits India Pvt.Ltd.) 2005(1) Civil Court Cases 46 (Kerala)
Notice – To constitute a notice there must be a demand for payment of the amount covered by the bounced cheque. (Koshy Titus Vs Crystal Biscuits India Pvt.Ltd.) 2005(1) Civil Court Cases 46 (Kerala)
Cheque – Correction in amount of cheque without consent of maker of cheque – It is material alteration which amounts to cancellation of the instrument – Criminal prosecution cannot be launched on it. (Ramachandran Vs Dinesan) 2005(1) Civil Court Cases 437 (Kerala) : 2005(2) Criminal Court Cases 197 (Kerala)
Subsequent insertion of amount and name of payee without consent of drawer amounts to material alteration rendering the instrument void as in the absence of certainty regarding the amount and the payee at the time of issue of cheque the cheque cannot be said to be a valid one – However, subsequent putting of date in an undated cheque would not always amount to material alteration. (Capital Syndicate Vs Jameela) 2003(1) Civil Court Cases 579 (Kerala) : 2003(1) Criminal Court Cases 675 (Kerala)
Debt or liability – Specific case of complainant that liability arose in joint business account of accused and his brother – No definite evidence showing joint business of accused and his brother – Complainant cannot tag this amount with that of accused under pretext of claiming as joint business – In view of specific case, complainant is not entitled to contend that cheque was issued in discharge of liability of other person – Finding of trial Court calls for no interference. Lawyer for cheque Bouncing Matter (S.S.Ummul Habiba, Proprietor, M/s.Alim Auto supplies Vs B.Rajendran) 2004(4) Criminal Court Cases 423 (Madras)
Dishonour of cheque – Partnership firm – Petitioner school going girl and her brother was still minor – Neither of the petitioners had been either in charge of or responsible to the firm for the conduct of its business at the time of alleged commission of offence – Petitioners not liable to be prosecuted – Proceedings quashed against petitioners. (P.Deeptha & Anr. Vs V.S.Chandrasekaran) 2003(3) Criminal Court Cases 358 (Madras)
Dishonour of cheque – Prosecution of Directors of company – Directors who are not even remotely concerned with the issuance of cheque, who are not concerned with the day-to-day functioning of the company cannot be held responsible unless the active participation of the Director is substantiated in the complaint itself by concrete material or instances or particulars – Not only that there must be specific averments but there must be description and particulars of the role played by such non-executive Directors – In the absence of such material, proceedings against such Director is liable to quashed. (Chaitan M.Maniar Vs State of Maharashtra) 2005(2) Criminal Court Cases 663 (Bombay)
Partnership firm – All the partners cannot be proceed as accused on the assumption that liability of all the partners is joint as only those partners who are actually incharge of the firm and are responsible for the conduct of its business can be proceeded against as accused. (Punjab State Coop. Supply and Marketing Federation Ltd. Vs M/s Malerkotla Rice Mills) 2003(1) Criminal Court Cases 700 (P&H) : 2003(1) Civil Court Cases 386 (P&H)
Company – Dishonour of cheque – Complaint against Company, its directors and its officers who signed and issued cheques – Summons and warrants against Company and its Directors not served – Case split up – Prosecution continued only against officers who signed cheques – Prosecution of company is not sine qua non for prosecution of other persons – If for some reasons Company cannot be prosecuted then other persons cannot on that score escape from penal liability. Lawyer for cheque Bouncing Matter (K.Chandrasekhar & Anr. Vs Mac Charles India Limited, Bangalore) 2005(2) Civil Court Cases 100 (Karnataka) : 2005(2) Criminal Court Cases 434 (Karnataka)
“Person incharge” – Meaning – “person incharge” must mean that the person should be in over all control of the day to day business of the company or firm – The person should be a party to the policy being followed by a company and yet not be in-charge of the business of the company or may be incharge of but not in overall charge or may be in charge of only some part of business. (Smt.Katta Sujatha Vs Fertilizers and Chem. Travancore Ltd.) 2003(1) Criminal Court Cases 161 (S.C.)
Company – Accountant – Specific allegation that he is also looking after the affairs of the company – Held, accountant who is responsible to the company for the conduct of its business can be prosecuted. (Dev Vs State of A.P.) 2002(1) Criminal Court Cases 655 (A.P.)
Company – Directors – No allegation in complaint that cheques were issued with consent or knowledge of Directors – No allegation that Directors were responsible for control of day to day business of company or had active role in issuing cheques – Order of cognizance against Directors quashed. (Madanlal Vs Bhanwarlal) 2003(2) Civil Court Cases 445 (Rajasthan)
Company – Person incharge and responsible to the company – Quashing of complaint sought on ground that complaint when read as a whole not disclosing commission of an offence or that some of the accused are lawyers and/or other professionals who had no scope for direct participation in the conduct of business of the company – Held, the question whether a person is in charge of or is responsible to the company for conduct of its business is to be adjudicated on the basis of materials to be placed by the parties and whether allegations contained are sufficient to attract culpability is matter for adjudication at the trial. (S.V.Muzumdar & Ors. Vs Gujarat State Fertilizer Co.Ltd. & Anr.) 2005(1) Apex Court Judgments 604 (S.C.) : 2005(2) Civil Court Cases 335 (S.C.) : 2005(2) Criminal Court Cases 720 (S.C.)
Dishonour of cheque – Company – Company as well as the persons incharge of and responsible to the company at the time of commission of offence are liable to be proceeded against. (Ritaben Ashokbhai Shah Vs Sanjay Kanubhai Sheth & Anr.) 2004(1) Criminal Court Cases 57 (Gujarat)
Dishonour of cheque – Company – Notice not given to petitioner who was one of the directors of the company – He had not either drawn or signed the cheque – He was merely a non-executive Director of the Company – He had resigned from the Board of Directors before issuance of the cheque – It was accused No.2 who was in sole management and incharge of day-to-day affairs of the company – Proceedings against petitioner quashed. (Chaitan M.Maniar Vs State of Maharashtra & Anr.) 2004(2) Civil Court Cases 418 (Bombay) : 2004(3) Criminal Court Cases 342 (Bombay)
Firm – Appellant in no way involved in any of the transactions referred to in the complaint and it was not stated that she was in charge of the business and was responsible for the conduct of the business of the firm – Proceedings qua petitioner quashed. (Smt.Katta Sujatha Vs Fertilizers and Chem. Travancore Ltd.) 2003(1) Criminal Court Cases 161 (S.C.)
Partnership – Partners – Absence of averments in complaint that partners are Incharge of and responsible to the firm for the conduct of the business of the firm – Order of Magistrate discharging the appellants restored. (Monaben Ketanbhai Shah & Anr. Vs State of Gujarat & Ors.) 2004(2) Apex Court Judgments 473 (S.C.) : 2004(3) Civil Court Cases 598 (S.C.)
Company – Dishonour of cheque – Director – Notice of demand not sent to the petitioner who is one of the Directors – Process issued against petitioner deserves to be quashed. (Chaitan M.Maniar Vs State of Maharashtra) 2005(2) Criminal Court Cases 663 (Bombay)
Dishonour of cheque – Complaint – Not signed by complainant but signed by counsel – There is no requirement of law that complaint must be signed and presented by the complainant himself – Pleader in whose favour Vakalatnama is executed is duly competent to appear for the complainant in the case and to conduct, prosecute or defend the same. Lawyer for cheque Bouncing Matter (Rakesh Raja Vs Naru Mohammed Sheikh) 2005(2) Civil Court Cases 345 (Rajasthan) : 2005(2) Criminal Court Cases 705 (Rajasthan)
Dishonour of cheque – Limitation – Notice dated 9.7.1990 sent on 11.7.1990 – Even if it is taken that it was served on 12.7.1990 then date 12.7.1990 is to be excluded and the accused was required to make the payment upto 27.7.1990 – Cause of action accrues on 28.7.1990 – Date 28.7.1990 is to be excluded for counting period of one month – Complaint filed on 27.8.1990 is well within time. (Gian Singh Vs Oswal Steels) 2005(2) Civil Court Cases 277 (P&H) : 2005(2) Criminal Court Cases 768 (P&H)
General Clauses Act, 1897, S.9 – Limitation Act, 1963, S.12 (2) – Dishonour of cheque – Limitation – In computing the period of limitation in any suit etc. the day from which such period is to be reckoned shall be excluded and similar provision has been made in S.12 (2) for appeal etc. – Same principle is also incorporated in S.9 of the General Clauses Act, 1897 – Rules of limitation Act and General clauses Act apply under Negotiable Instrument Act. (Gian Singh Vs Oswal Steels) 2005(2) Civil Court Cases 277 (P&H) : 2005(2) Criminal Court Cases 768 (P&H)
Repeal of Act 30 of 2001 does not affect amendments effected in Negotiable Instruments Act by Act 66 of 1988. (K.K.Vasudeva Kurup Vs Union of India) 2003(1) Civil Court Cases 54 (Bombay)
Cheque can be presented any number of times within its validity but it will not give fresh cause of action every time – Cause of action accrues only when notice is given and drawer fails to make the payment – Cause of action arises only once. (M/s.Pram Chand Vijay Kumar Vs Yash Pal Singh & Anr.) 2005(2) Criminal Court Cases 742 (S.C.)
Complaint – Cognizance taken – Plea of accused that he did not receive notice – Court rejected recall petition – On request of complainant Court returned the cheque as complainant pleaded that on verification he ascertained that the accused did not receive the notice personally – Cheque again presented and again dishonoured – Second complaint filed on failure to make payment inspite of notice – Presumption of service of first notice sent by registered post is available to the complainant and not to the opposite party and moreover accused himself has stated that he did not receive the notice which was conceded to by the complainant – Held, since no cause of action arose in favour of the complainant on the first dishonour of cheque as such subsequent complaint is maintainable. Lawyer for cheque Bouncing Matter (A.Gangadhar Vs K.Prasad) 2005(2) Civil Court Cases 436 (Orissa)
Complaint by GPA holder – GPA to be filed into Court and Court should also insist on filing an affidavit to be presented in lieu of proof of execution of the GPA. (M/s RBF Nidhi Ltd. & Anr. Vs State of A.P.) 2003(2) Criminal Court Cases 178 (A.P.)
Dishonour of cheque – Complaint by GPA holder – Signatures of payee on complaint and his examination u/s 200 Cr.P.C. is mandatory. (M/s RBF Nidhi Ltd. & Anr. Vs State of A.P.) 2003(2) Criminal Court Cases 178 (A.P.)
Legal representative of the payee or holder in due course can file a complaint u/s 138 read with S.142 of the Act if other conditions in the sections are satisfied. (Chandra Babu Vs Remani) 2003(2) Criminal Court Cases 641 (Kerala) : 2003(3) Civil Court Cases 12 (Kerala)
Dishonour of cheque – Complaint – Magistrate giving long date of one year – Magistrate directed to prepone the date keeping in view the provision of S.143 of the Negotiable Instruments Act. (Khanna Hotels Pvt. Ltd. Vs State (Govt. of NCT of Delhi)) 2004(4) Criminal Court Cases 347 (Delhi)
Dishonour of cheque – Preliminary evidence – Permissible by way of affidavit – Unless the case falls within ‘just exception’ contemplated u/s 145 of N.I. Act, Court must receive affidavits as evidence at the stage of S.200 Cr.P.C. and should not insist on personal appearance and examination of the complainant to give sworn statement. (Vasudevan Vs State of Kerala) 2005(1) Civil Court Cases 440 (Kerala) : 2005(1) Criminal Court Cases 895 (Kerala)
Dishonour of cheque – Cheque amount paid and complainant received the same – It shall be taken that parties have compounded the offence – With the amendment introduced in S.147 of the Act, every offence punishable under the Act is compoundable. (M.A.Mohana Pai Vs V.A.Jabbar & Anr.) 2005(1) Criminal Court Cases 743 (Kerala) : 2005(1) Civil Court Cases 797 (Kerala)
Certain payments made after dishonour of cheque – Witness not examined to prove Ex.D-1 to D-6 – As such it is difficult to come to a positive conclusion that amount paid subsequent to the date of issuance of the cheque pertains to the discharge of the cheque amount only. (The Waterbase Ltd. Vs Karuthuru Ravendra) 2002(2) Criminal Court Cases 676 (A.P.)
Cheque issued on specific understanding that the same can be presented and encashed if the entire loan amount not otherwise paid before the date of cheque – Held, cheque was issued for the discharge of a legally enforceable debt/liability. Lawyer for cheque Bouncing Matter (Thekkan & Co. Vs Anitha) 2004(1) Criminal Court Cases 65 (Kerala) : 2004(2) Civil Court Cases 13 (Kerala)
Cheque issued – It is to be presumed that it is issued in discharge of a debt or other liability – This presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. (Goa Plast (P) Ltd. Vs Chico Ursula D’Souza) 2004(1) Apex Court Judgments 273 (S.C.) : 2004(1) Criminal Court Cases 693 (S.C.) : 2004(2) Civil Court Cases 577 (S.C.)
Presumption that holder of cheque received the cheque for the discharge, in whole or in part of any debt or other liability – It is a rebuttable presumption – Presumption so raised can be rebutted either by direct evidence or from the facts and circumstances forthcoming. (S.S.Ummul Habiba, Proprietor, M/s.Alim Auto supplies Vs B.Rajendran) 2004(4) Criminal Court Cases 423 (Madras)
Presumption – Rebuttal – Name of complainant on cheque in a different handwriting – It is unbelievable that accused will not write name of complainant and will leave it blank while writing the amount and the date on the cheque – There is no reason to hold that accused got the name of complainant written by a different person. (Shri Wilson Fernandes Vs Shri Nitin Pandurang & Anr.) 2004(4) Criminal Court Cases 433 (Bombay)
‘Legally enforceable debt’ – Court has to draw a presumption that the drawer of the cheque has issued the same for legally enforceable debt or liability, unless the contrary is proved. (The Waterbase Ltd. Vs Karuthuru Ravendra) 2002(2) Criminal Court Cases 676 (A.P.)
A person other than “company” can be proceeded against if it is shown that he was incharge of and was responsible to the company or the firm for the conduct of its business. (Inder Sehgal Vs M/s Thakar Petro Chemicals Ltd.) 2003(3) Criminal Court Cases 580 (P&H)
Company – When a person is not the incharge of the company and is not responsible for conduct and business of the company, he is not responsible to the company for the conduct of business of the company. (Sham Lal Vs Raj Kumar Aggarwal) 2002(2) Criminal Court Cases 505 (P&H)
Manager – Filed complaint on behalf of company/firm – No authorisation is required. (S.P.Subramaniam & Ors. Vs Vasavi Cotton Traders) 2002(3) Criminal Court Cases 275 (A.P.)
Delay – Cannot be condoned – S.473 Cr.P.C. & S.5 Limitation Act not applicable. (Rayala Sima Agro Enterprises & Ors. Vs Gujarat Agro Industries Corpn. Ltd.) 2002(3) Criminal Court Cases 460 (A.P.)
Complaint without signatures of complainant – A defective complaint – Defective complaint not liable to be thrown out automatically – Complaint to be returned to be represented by curing the defect – Presentation of complaint shall be deemed to be presentation when it is represented by curing the defect. (P.Preetha Vs Panyam Cements & Mineral Industries Limited) 2002(2) Criminal Court Cases 558 (A.P.)
Complaint – To be made in writing – Complaint without signatures of complainant – Cannot be treated as a “Complaint made in writing by the payee”. (P.Preetha Vs Panyam Cements & Mineral Industries Limited) 2002(2) Criminal Court Cases 558 (A.P.)
Complaint – Without signatures of complainant – Returned for curing the defect – Complaint shall be deemed to be presented only when it is represented by signing it – If by that time limitation has expired then complaint is barred by limitation. (P.Preetha Vs Panyam Cements & Mineral Industries Limited) 2002(2) Criminal Court Cases 558 (A.P.)
A person other than “company” can be proceeded against if it is shown that he was incharge of and was responsible to the company or the firm for the conduct of its business. (Inder Sehgal Vs M/s Thakar Petro Chemicals Ltd.) 2004(2) Civil Court Cases 18 (P&H)
Dishonour of cheque – Parties compromised during pendency of revision petition in High Court – In view of S.147 of the Act complainant permitted to compound the offence and order of conviction and sentence set aside and complainant ordered to be acquitted.Lawyer for cheque Bouncing Matter(Ami Lal Vs Mahavir Prasad Surendra Mohan) 2005(2) Civil Court Cases 171 (Rajasthan) : 2005(2) Criminal Court Cases 479 (Rajasthan)
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