Landmark Supreme Court Judgment on Sec 138 of Negotiable Instruments Act
Supreme Court Changes ground rule under Section 138 of Negotiable Instruments Act to prosecute a person who had presented the cheque which bounced for insufficiency of funds. Through this judgment, SC provides relief to the holders of bounced cheques under the provisions of the Negotiable Instruments Act
What is a Negotiable Instrument?
The word negotiable means ‘transferable by delivery’ and the word instrument means ‘a written document by which a right is created in favour of some person’. The transfer should be unrestricted and in good faith.
Therefore, a negotiable instrument is a document guaranteeing the payment of a specific amount of money, either on demand, or at a set time, with the payer named on the document. It is an indebtedness to pay an amount and the negotiable instrument is an unconditional guarantee for the same.
Some Examples of Negotiable instruments are Promissory notes, Cheques, Bills of Exchange, bearer bonds, bank notes etc.
The Indian law on Negotiable instruments is governed by the Negotiable Instruments Act of 1881.
About the Act
The Negotiable Instruments Act 1881 was passed in 1882 and was amended in 1989 and 2002, Before 1988 there was no provision to restrain the person issuing the Cheque without having sufficient funds in his account. The only remedy against a Dishonoured cheque was a civil liability accrued. In order to ensure promptitude and remedy against the defaulters of the Negotiable Instrument a criminal remedy of penalty was inserted in Negotiable Instruments Act, 1881 by amending it with Negotiable Instruments Act, 1988. The second noteworthy amendment was when the parliament enacted the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 which is intended to plug the loopholes. This amendment Act inserts five new sections from 143 to 147 touching various limbs of the parent Act. This act is applicable to the whole of India including the state of Jammu and Kashmir, which was brought under the purview of the act in 1956.
The objective of the act is to define the various negotiable instruments such a, promissory notes, bills of exchange, cheque etc. Also to prescribe the liability in case of a failure of the instrument to fulfill its debt due to the default on the part of the payer or to curb scrupulous practices adopted to escape liability in respect of negotiable instruments. However, Section 138 in regard to dishonor of cheque attracts criminal liability.
Law on Negotiable Instrument, Section 138
It is manifest that to constitute an offense under Section 138 of the Act; the following ingredients are required to be fulfilled
- a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account
- the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
- that cheque has been presented to bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier;
- that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
- the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
- the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice;
To put it in simpler terms the law stated that the person must owe some amount of money to another and draws a cheque in that regard to fulfil that liability, the cheque be drawn on an account in a bank by him. The cheque was then presented to the bank within 3 months of the date on which it is drawn. However due to insufficiency of funds the cheque is returned by the bank unpaid. The payee (the bank) makes a demand for payment of said amount which the person owed within 30 days of the information received by him (the person who owed the money) that the cheque was returned unpaid; and thereafter the person fails to pay the amount within 15 days of the notice by the bank.
By a landmark judgment, Dashrath Roopsingh Rathod Vs. Stae of Maharashtra & Anr.
In this case, the Supreme Court has changed the basic criteria under Section 138 of Negotiable Instruments Act which is to prosecute a person who had presented the cheque which had been returned due to insufficiency of funds or if the amount exceeds the amount in the bank of the payer.
Earlier, a case under Section 138 could be initiated by the holder of the cheque at his place of business or residence. But, a bench of justices TS Thakur, Vikramjit Sen and C Nagappan ruled that the case has to be initiated at the place where the branch of the bank on which the cheque was drawn is located.
And the judgment would apply retrospectively. This means, lakhs of cases pending in various courts across the country would witness a interstate transfer of cheque bouncing cases.
The bench said: “In this analysis, we hold that the place, situs or venue of judicial inquiry and trial of the offence must logically be restricted to where the drawee bank is located.”
Example: Mr. X who resides in Chennai owes Rs. 1 Lakh to Mr. B who resides in Chandigarh, Mr. X issues a cheque in delhi in favour of Mr. B. The cheque bounces in Ludhiana (place of bank where the cheque is given by Mr. B) for insufficiency of funds.
According to the earlier law Mr. X could have chosen any of the four places. But by the recent judgment the only place for institution of case would be Ludhiana, i.e. where the cheque has dishonored at the payee bank which is located in Ludhiana in this example.
Reasons for passing the new law
The rationale behind this change is that the payers majority being businessmen and traders were using extending credit recklessly and due to the leniency in the provision of Section 138, it was being misused in regards to the place of institution, as sometime the payer had no concern with the place where the cheque was issued and to unnecessarily harass the payee cause hardship of place of institution of case according to their convenience. To curb this practice this judgment aims to get to the root of the issue and resolve it by a strict approach so as to discourage the payer from misusing or carelessly issuing cheques. The hardship of traveling to the location of drawee bank is now on the payer.
The change in the existing law shifts the inconvenience and hardship on the payer because now he would have to travel to the place of the drawee bank where the cheque gets dishonored due to insufficiency of funds. Hence, guaranteeing more precaution by the payer at the time of issuing the cheque.
By Shweta Kaushik, Advocate Punjab & Haryana High Court