Case Summaries on Dishonour of Cheques

M/s. Indus Airways Pvt. Ltd. & Ors. Vs. M/s. Magnum Aviation Pvt. Ltd. & Anr.    
CRIMINAL  APPEAL NO.     830  OF 2014

Negotiable Instruments Act, 1881 - s.138 - Post-dated cheques issued bypurchasers as advance payment in respect of purchase orders - If could be considered in discharge of legally enforceable debt or other liability,
and, if so, whether dishonour of such cheques amounts to offence u/s. 138 - Held: For a criminal liability to be made out u/s.138, there should be legally enforceable debt or other liability subsisting on the date of
drawal of the cheque - Payment by cheque in the nature of advance payment indicates that at the time of drawal of cheque, there was no existing liability - If a cheque is issued as an advance payment for purchase of the goods and for any reason purchase order is not carried to its logical conclusion either because of its cancellation or otherwise and material or goods for which purchase order was placed is not supplied by the supplier, the cheque cannot be said to have been drawn for an existing debt or
liability - View of the High Court that the issuance of cheque towards advance payment at the time of signing such contract has to be considered as subsisting liability and dishonour of such cheque amounts to an offence
u/s.138 cannot be accepted.
The question which arose for consideration in this appeal was whether the post-dated cheques issued by the appellants-purchasers as advance payment in respect of purchase orders could be considered in discharge of legally enforceable debt or other liability, and, if so, whether the dishonour of such cheques amounts to an offence under Section 138 of the Negotiable Instruments Act, 1881.

SANJAY KUMAR v THE STATE OF BIHAR & ANR. [2014] 1 S.C.R. 848

Complaint for offences punishable u/ss 406 and 420 IPC nd s. 138 of Negotiable Instruments Act – Quashed by High Court  –  SLP  by  complainant  –  Notice  to  petitioner- complainant  to  show  that  the  institution  was  a  fake  on   as pleaded by him – Petitioner seeking to ignore such pleadings – Held: Pleadings have to be true to the knowledge of parties and  in  case  a  person  takes  such  misleading  pleadings,  he can be refused not only any kind of indulgence by court but can  also  be  tried  for  perjury  —  In  case,  pleading  taken  by petitioner is true, he cannot ask for ignoring the same — In case,  it  is  false  and  as  such  statement  had  been  made  on oath, he is liable to be tried for perjury — More so, whether such a pleading is relevant or not is a matter to be decided by court and u/s 165 of the Evidence Act, 1872, court has a  right to ask the party even relevant or irrelevant questions and parties or their counsel cannot raise any objection to any such question  —  Conduct  of  petitioner  condemned  –  Code  of
Criminal Procedure, 1973 — s. 482 — Evidence Act, 1872 – s. 165.


RAMESHCHANDRA  AMBALAL  JOSHI v. THE STATE OF GUJARAT AND ANR. [2014]  1  S.C.R.  1112

s.138,  proviso(a)  -  Dishonour  of  cheque  -  Presentation of  cheque  "within  a  period  of  six  months  from  the  date  on which it is drawn" - Connotation of - Held: The word "month" has  been  defined  u/s  3(35)  of  the  General  Clauses  Act  to mean  a  month  reckoned  according  to  the  British  calendar.
Accordingly,  the  period  of  six  months  cannot  be  calculated on 30 days in a month basis -- Once the word 'from' is used for the purpose of commencement of time, in view of s. 9 of
the  General  Clauses  Act,  the  day  on  which  the  cheque  is drawn has to be excluded - Cheque drawn on 31.12.2005 and presented  on  30.6.2006  was  presented  within  the  period prescribed  -  Therefore,  prosecution  is  not  time  barred  - General Clauses Act, 1897 - ss.3(35) and 9. 

LAFARGE  AGGREGATES  &  CONCRETE  INDIA  P.  LTD
v. SUKARSH AZAD  & ANR [2013]  11  S.C.R.  74

Negotiable  Instruments  Act,  1881  –  s.138  –  Code  of Civil Procedure, 1908 – Order IX r.13 – Dishonour of cheque of  amount  Rs.2,50,000/-  –  On  the  ground  of  ‘stop  payment’ instruction – Complaint u/s. 138 of Negotiable Instruments Act
–  Petition u/s.482  –  High  Court  quashed  the  complaint  and the  consequential  proceedings,  by  ex-parte  order  – Application  for  recall  of  the  ex-parte  order  dismissed  – Present appeals against the order dismissing the application
for recalling the ex-parte order and also against the ex-parte order  –  Held:  Appeal  against  the  order  in  application  for recalling the ex-parte order is devoid of merit as the applicant failed to offer sufficient cause for his non-appearance on the
date when the complaint was quashed – The appeal against the ex-parte order is liable to be dismissed on the ground of delay as well as on merit – However, in the interest of equity, justice  and  fair  play,  direction  to  make  payment  to  the complainant for a sum of Rs.5 lakhs, which would be treated as  an  overall  amount  including  interest  and  compensation towards the cheque for which ‘stop payment ’instruction was
issued.

A.C.  NARAYANAN v. STATE  OF  MAHARASHTRA  & ANR. [2013]  11  S.C.R.  80

Negotiable Instruments Act, 1881 – ss. 138, 142 and 145 –  Filing  of  complaint  petition by  Power of  Attorney  holder  – Validity – Whether a Power of Attorney holder can be verified on  oath  –  Whether specific  averments  as  to  the  knowledge of the Power of Attorney holder in the impugned transaction
must be explicitly asserted in the complaint – Effect of s.145 – Held: Filing of complaint petition u/s.138 through power of attorney  is  perfectly  legal  and  competent  –  The  Power  of Attorney  holder  can  depose  and  verify  on  oath  before  the Court  in  order  to  prove  the  contents  of  the  complaint  –
However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or  possess  due  knowledge  regarding  the  transaction  –  It  is required by the complainant to make specific assertion as to the  knowledge  of  the  power  of  attorney  holder  in  the  said transaction  explicitly  in  the  complaint  –  Power  of  attorney
holder  who  has  no  knowledge  regarding  the  transaction cannot be examined as a witness in the case – In the light of s.145, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the  complaint  u/s.138  and  the  Magistrate  is  neither mandatorily  obliged  to  call  upon  the  complainant  to  remain present  before  the  Court,  nor  to  examine  the  complainant upon  oath  for  taking  the  decision  whether  or  not  to  issue process on the complaint u/s.138 – The functions  under the general  power  of  attorney  cannot  be  delegated  to  another person  without  specific  clause  permitting  the  same  in  the power  of  attorney  –  Nevertheless,  the  general  power  of attorney  itself  can  be  cancelled  and  be  given  to  another person –  Code  of  Criminal Procedure,  1973 –  s.200.

JOHN  K. ABRAHAM v. SIMON C. ABRAHAM  & ANOTHER [2013]  12  S.C.R.  753

Negotiable  Instruments  Act,  1881  –  s.138  –  Dishonour of cheque  – Trial acquitted  accused-appellant – Reversal  of acquittal by High Court – Justification – Held: Not justified – In order to draw presumption u/s.118 r/w s.139, the burden was heavily upon the respondent-complainant to have shown that he had the required funds for having advanced money to the appellant; that issuance of cheque in support of the payment advanced was true and that the appellant was bound to make the  payment  as  had  been  agreed  while  issuing  the  cheque in favour of the respondent – Respondent, however, was not even  aware  of  the  date  when  substantial  amount  of Rs.1,50,000/- was advanced by him to the appellant; he was not sure as to who wrote the cheque; he was not even aware when exactly and where exactly the transaction took place for which  the  cheque  came  to  be  issued  by  the  appellant  – Moreover, the respondent took diametrically opposite stands – Various defects in the evidence of respondent, as noted by the trial Court were simply brushed aside by the High Court without  assigning  any  valid  reason  –  Serious  lacuna  in  the evidence  of  respondent  which  strikes  at  the  root  of  the complaint  u/s.138  –  This  factor  not  examined  by  the  High Court while reversing the judgment of trial Court – Conviction of  appellant  accordingly set  aside.


KAMLESH  KUMAR v. STATE OF BIHAR  & ANR. [2013]  12  S.C.R.  793

s.138  –  Dishonour  of  cheque  –  Legal  notice  not  sent within 30 days of the knowledge of such dishonor – Held: The right to present the same cheque for second time is available to  complainant  –  However,  period  of  limitation  is  not  to  be counted  from  the  date  when  the  cheque  in  question  was presented in the first instance or the legal notice was issued in that regard asmuchas the cheque was presented again — After the cheque is returned unpaid, notice has to be issued within 30 days of the receipt of information in this behalf — It is clear from the averment made by the complainant himself that he had gone to the bank for encashing the cheque and found that because  of  unavailability  of sufficient balance in the  account,  the  cheque  was  bounced  —  In  view  of  this admission in the complaint about the information having been received  by  the  complainant  about  the  bouncing  of  the cheque on the date of presentation of the cheque itself, no further  enquiry  is  needed  on  this  aspect  —  Thus,  the complaint  filed  by  him  was  not  maintainable  as  the  legal notice  was  not  issued  within  30  days  from  the  date  of
information.

VIJAY v.LAXMAN AND ANR. [2013] 4 S.C.R. 80

Negotiable Instruments  Act, 1881  – ss.118(a),  138 and 139 – Cheque issued by respondent in favour of appellant – Dishonoured on account of insufficiency of funds – Complaint by  appellant  u/s.  138  alleging  that  the  cheque  represented repayment of personal loan granted for two months – Defence version  of  accused-respondent  that  the  cheque  was  given merely  as  a  security  deposit  in  terms  of  a  prevailing  trade practice  and  not  towards  repayment  of  any  loan;  that  even after eventual settlement of accounts between the parties, the cheque was not returned to the respondent, which resulted in altercation  between  the  parties  and  that  subsequently  as  a
counter  blast  the  appellant  presented  the  cheque  for encashment  –  Conviction  of  appellant  by  trial  Court  –  High Court set aside the conviction – Justification – Held: Justified – Appellant failed to establish that the cheque in fact had been issued by the respondent towards repayment of personal loan
–  Absence  of  any  documentary  or  other  evidence  in  that regard – If the cheque was issued towards repayment of loan which  was  meant  to  be  encashed  within  two  months,  it  is beyond comprehension as to why the cheque was presented by the appellant on the same date it was issued – Respondent would have had no reason to ask for a loan from the appellant
if  he  had the  capacity  to  discharge  the  loan amount  on  the date when the cheque had been issued – Besides, the cheque was presented on the day following altercation between the parties – Also, the complaint lodged does not specify the date on  which  the  loan  amount  was  advanced  –  Nor  does  the complaint  indicate  the  date  of  its  lodgment  –  Defence succeeded in dislodging the complainant-appellant’s case on the  strength  of  convincing  evidence  of  rebuttal  and  thus discharged the burden envisaged u/ss. 118 (a) and 139 of the N.I.  Act  –  Appellant’s  case  in  the  realm  of  grave  doubt  –
Acquittal  of  respondent  confirmed  –  The  Banking  Public Financial  Institutions  and  Negotiable  Instruments  Laws (Amendment)  Act,  1988.


MRS. APARNA A.  SHAH v. M/S. SHETH DEVELOPERS PVT. LTD. & ANR. [2013] 7 S.C.R. 69

ss. 138 and 141 - Dishonour of cheque - Liability of joint account holders - Complaint u/s. 138 - Held: Under s. 138, it is  only  the  "drawer"  of  cheque  who  can  be  made  liable  for penal action -- Strict interpretation is required to be given to penal  statutes  -  In  a  case  of  issuance  of  cheque  from  joint
account, a joint account holder cannot be prosecuted unless cheque  has  been  signed  by  each  and  every  joint  account holder - Appellant has not signed the cheque - s. 141, which deals with offence u/s. 138 committed by a company, is not attracted - It was never the case in the complaint that appellant was being prosecuted as an association of individuals - The term "association of persons" has to be interpreted ejusdem generis  having  regard  to  the  purpose  of  the  principle  of vicarious  liability  incorporated  in  s.  141  -  Proceedings  as
regards  appellant,  quashed  -Interpretation  of  statutes  - Ejusdem  generis.


NISHANT AGGARWAL v.KAILASH  KUMAR  SHARMA [2013] 7 S.C.R. 165
ss.138  and  141  -  Dishonour  of  cheque  -  Territorial jurisdiction - In view of the law laid down in Bhaskaran's case, the Magistrate in whose jurisdiction the drawee resides and, as such, has filed the complaint, has territorial jurisdiction to try the complaint - s.178 of the Code has widened the scope of jurisdiction of a criminal court and s.179 of the Code has stretched  it  to  still  a  wider  horizon  -  Code  of  Criminal Procedure, 1973 - ss. 177, 178 and 179 - Jurisdiction.

V.  K.  BANSAL v. STATE OF  HARYANA AND  ORS.  ETC.  ETC. [2013] 7 S.C.R. 617
s.  138  –  Dishonour  of  Cheques  –  Conviction  and sentence – Plea for concurrent running of sentences – Held: Applying  the  principle  of  single  transaction,  the  substantive sentences awarded to the appellant in each case relevant to the transactions with each company ought to run concurrently
— However, there is no reason to extend that concession to transactions in which the borrowing company is different, no matter the appellant before the court is the promoter/Director of  the  said  other  companies  also  —  Direction  regarding concurrent  running  of  sentence  shall  be  limited  to  the substantive sentences only because the provisions of s. 427, Cr.P.C.  do  not  permit  a direction  for  the  concurrent  running of the substantive sentences with sentences awarded in default of  payment  of  fine/  compensation  –  Code  of  Criminal Procedure, 1973 – s.427.

C.  KESHAVAMURTHY v. H.K.  ABDUL  ZABBAR [2013]  8  S.C.R.  429
Negotiable  Instruments  Act,  1881  –  ss.  138  and  139  – Dishonour of cheque – Complaint – Conviction by trial court and  appellate  court  –  Acquittal  by  revisional  court  –  On appeal, held:  Once  the  complaint  case  of  cheque  bouncing is  prima  facie  established,  the  burden  is  on  the  accused  to disprove  the  allegations  –  The  accused  in  the  instant  case failed to disprove the allegation – Hence, order of conviction upheld.

SOMNATH  SARKAR v. UTPAL  BASU  MALLICK  & ANR. [2013] 9 S.C.R. 935
s.138 of N.I. Act r/w s.357(3) CrPC - Dishonour of cheque -  Conviction  -  Sentence  of  six  months  simple  imprisonment and  to  pay  compensation  to  complainant,  affirmed  by Sessions  Judge  -  High  Court  in  revision  filed  by  accused, substituting six months sentence by imposing a further sum equivalent  to  cheque  amount  -  Held:  High  Court  was competent to impose a sentence of fine only upon accused - -  It  has  rightly  set  aside  the  sentence  of  imprisonment  -
However, as the amount of fine imposed by High Court over and above the amount of compensation exceeds double the cheque amount, it would violate s.138 N.I. Act - Complainant has received compensation as per adjudication of trial court - Accused sentenced to pay further a fine of Rs.20,000/- and on  his failure  to do  so, he  would be  liable for  imprisonment for six months - Code of Criminal Procedure, 1973 - s.357(3).
s. 138 - Power of court to levy fine - Held: Is circumscribed to twice the cheque amount -- Even in a case where court may be taking a lenient view in favour of accused by not sending him  to  prison,  it  cannot  impose  a  fine  more  than  twice  the cheque amount -- That statutory  limit is inviolable and must be  respected  --  High  Court  has,  in  the  case  at  hand, overlooked the statutory limitation on its power to levy a fine.
s. 138 of N.I. Act and s. 357, CrPC -- Held: Power to award compensation is not available u/s 138 of N.I. Act -- It is only when  court  has  determined  the  amount  of  fine  that  the question of paying compensation out of the same would arise -- This implies that the process comprises two stages -- First, when court determines the amount of fine and levies the same subject to the outer limit, if any, as is the position in the instant case -- The second stage comprises invocation of the power to award compensation out of the amount so levied -- In the instant case, High Court has not followed that process -- It has taken  payment  of  compensation  to  be  distinct  from  the amount of fine it imposed equivalent to the cheque amount - - High Court  should have determined the fine  amount to be paid by the accused, which in no case could go beyond twice the cheque  amount, and directed payment  of compensation to the complainant out of the same -- Ordered  accordingly.

A.K. SINGHANIA v. GUJARAT STATE FERTILIZER CO. LTD. & ANR. [2013] 9  S.C.R. 1069

s.  141  r/w  s.  138  -  Complaint  against  a  company,  its Chairman,  Managing  Directors  and  Directors  -  Petitions  by two directors seeking to quash the proceedings against them -  Held:  In  case  of  offence  by  company  for  dishonour  of cheque,  culpability  of  Directors  has  to  be  decided  with reference to s. 141 -- To bring the Directors within the mischief of s. 138, it shall be necessary to allege that at the relevant time they were in charge of and responsible to the conduct of business  of  the  Company  --  It  is  necessary  ingredient  to proceed  against  such  Directors  --  In  the  instant  case,  the averments  in  the  complaints  nowhere  suggest  that  the  two Directors  concerned  were  incharge  and  responsible  for conduct  of  business  of  the  company  at  the  time  when  the offence was committed - Thus, the necessary averment in the complaints is lacking - Therefore, prosecution of two Directors concerned  cannot  be  allowed  to  continue  and  their prosecution in all the cases, is quashed.


MSR  LEATHERS v. S.  PALANIAPPAN  & ANR. [2013]  10  S.C.R.  81

Negotiable  Instruments  Act,  1881  –  ss.138  &  142  – Prosecution based on second or successive dishonour of the cheque  –  Held:  Is  permissible  so  long  as  it  satisfies  the requirements  stipulated  under  the  proviso to  s.138.


M/S. ESCORTS LIMITED v. RAMA  MUKHERJEE [2013]  10  S.C.R.  339

Negotiable Instruments Act, 1881 - s.138 - Dishonour of cheque - Jurisdiction to try offence u/s.138 - Vesting with which Court  -  Held:  The  Court  within  the  jurisdiction  whereof,  the dishonoured cheque  was  presented  for  encashment,  would have  the  jurisdiction  to  entertain  the  complaint  filed  u/s.138.


R. MOHAN v. A.K. VIJAYA KUMAR [2012] 7  S.C.R. 1

Negotiable  Instruments  Act,  1881  -  s.138  -  Conviction and sentence awarded to accused for issuing cheque without sufficient balance in the bank - Propriety of - Held: On facts, proper - The complainant's evidence was wholly satisfactory - High Court was perfectly justified in confirming the conviction and  sentence  in  view  of  the  promissory  note  (Ex-P1),  the cheque (Ex-P2), reply dated 24-5-2002 sent by the accused to the complainant (Ex-P8) and the complainant's Income-tax Returns.

MSR  LEATHERS v. S. PALANIAPPAN  & ANR. [2012] 9 S.C.R. 165
Negotiable  Instruments  Act,  1881  -  s.  138  -  Dishonour of  cheque  -  Prosecution  based  upon  second  or  successive dishonour - When no prosecution initiated on first dishonour - Whether permissible - Held: In view of s. 138 and the object underlying  therein,  the  prosecution  based  on  second  or successive default in payment of cheque is permissible even when no  prosecution was initiated  pursuant to first  default - Even  the  legislative  intention  was  not  to  impose  such restriction - So long as the cheque remains unpaid within its validity  period  and  condition  precedent  for  prosecution  in terms of proviso to s. 138 are satisfied, cheque holder's right to prosecute the drawer remains valid and exercisable - The benefit of further opportunity to the drawer by reason of a fresh presentation  of  cheque,  cannot  help  the  defaulter  to  get  a complete  absolution  from  prosecution  -  Interpretation  of Statues.

REV. MOTHER MARYKUTTY v. RENI C. KOTTARAM & ANOTHER [2012] 9 S.C.R. 530

Negotiable Instruments Act, 1881 – ss.138, 139 and 142 – Dishonour of cheque – Presumption to be drawn – Standard of  proof  –  Preponderance  of  probabilities  –  Complaint  by respondent alleging that appellant had entrusted it with some construction work and in that regard issued a cheque in his favour  for  Rs.25  lakhs  but  the  cheque  was  dishonoured  – Acquittal  of  accused-appellant  by  trial  court  –  Reversed  by High Court – Justification – Held: Elaborate consideration was made  by  the  trial  Court  for  acquitting  the  appellant  –  The conclusions of the trial court were drawn by adducing cogent and  convincing  reasoning  –  Taking  into  account  various reasons inter alia including a) that the final payment was to be  settled  only  after  completion  of  the  work  and  that  the respondent did not complete the work; b) that there was no evidence to conclude that any measurement of the work was done and the accounts were settled; c) that the cheque was not in the handwriting of the appellant which strengthened the defence  version  that  it  was  not  executed  in  favour  of  the respondent;  d)  that  there  was  no  reliable  documentary evidence  adduced  by  the  respondent  to  hold  that  a  sum  of Rs.25  lakhs  was  due  to  him  warranting  execution  of  the cheque and  e) that there was  no amount legally due  to the respondent to hold that the cheque was as a matter of fact issued by the appellant in favour of the respondent in order to  hold  that  he  was  a  holder  of  the  cheque,  the  trial  Court ultimately concluded that no offence was made out as against the appellant under s.138 in order to convict her under s.142 
–  Appellant  sufficiently  rebutted  the  initial  presumption  as regards the issuance of the cheque under ss. 138 and 139 – The  preponderance  of  probabilities  also  fully  supported  the stand of the appellant – Judgment of the High Court in having interfered with the order of acquittal by the trial court without proper reasoning, thus, liable to be set aside.

M/S. LAXMI DYECHEM v. STATE OF GUJARAT & ORS. [2012]  11  S.C.R.  466

ss.  138  and  139  –  Dishonour  of  cheques  for mismatching  of  signatures  –  Held:  Just  as  dishonour  of  a cheque on the ground that the account has been closed is a dishonour falling in the first contingency referred to in s.138, so also dishonour on the ground that the “signatures do not match” or that the “image is not found”, which too implies that the specimen signatures do not match the signatures on the cheque, would  constitute a dishonour  within the  meaning of s.138 – So long as the change is brought about with a view to preventing the cheque being honoured the dishonour would become  an  offence  u/s.138  subject  to  other  conditions prescribed being satisfied – Allegations of fraud and the like are  matters  that  cannot  be  investigated  by  a  court  u/s  482 Cr.P.C. and shall have to be left to be determined at the trial after  the  evidence  is  adduced  by  the  parties  –  Code  of Criminal  Procedure,  1973  –  s.482.


ss.138  and  139  –  Dishonour  of  cheque  –  Presumption in favour of holder – Held: Is rebuttable – Return of cheque by bank on ground of ‘stop payment’ although has been held to constitute an offence, s.138 cannot be applied in isolation ignoring  s.139  –  The  category  of  cases  of  ‘stop  payment’ instructions where the account holder has sufficient funds in his account to discharge the debt, would be subject to rebuttal and the accused can show that the stop payment instructions were not issued because of insufficiency or paucity of funds,but for other valid causes including the reason that there was no existing debt or liability in view of bonafide dispute between the  drawer  and  drawee  of  the  cheque  –  If  that  be  so,  then offence u/s 138 although would be made out, the same will attract  s.139  leaving  the  burden  of  proof  of  rebuttal  on  the drawer  of  the  cheque  –  Thus,  in  cases  arising  out  of  ‘stop payment’ situation,  ss. 138  and 139  will have  to be  given a harmonious construction, otherwise s.139 would be rendered nugatory.


INDRA KUMAR PATODIA  & ANR. v. RELIANCE INDUSTRIES LTD. AND ORS. [2012] 13  S.C.R. 129

Negotiable  Instruments  Act,  1881  –  ss.  138  and  142  – Complaint  under  –  Without  signature  –  But  verified  by  the complainant  –  Maintainability  –  Held:  The  complaint  without signature is maintainable, when such complaint is verified bythe complainant and process is issued by the Magistrate after due verification – The complaint is required necessarily to be in writing and need not be signed – Legislative intent was that ‘writing’ does not pre-suppose that the same has to be signed – ‘Signature’ within the meaning of ‘writing’ would be adding words to the Section, which the legislature did not contemplate –  Code  of  Criminal  Procedure,  1973  –  ss.  2  (d)  –  General Clauses  Act,  1897  –  ss. 3(56)  and  3(65)  –  Interpretation  of Statutes.
Interpretation of Statutes – Interpretation of non-obstante clause  –  Held:  While  interpreting  non-obstante  clause,  the Court is required to find out the extent to which the legislature intended to exclude a provision and the context in which such clause is  used. Words  and  Phrases  –  ‘Complaint  in  writing’  –  Meaning of, in the context of s. 142(a) of Negotiable Instruments Act, 1881.


JIK INDUSTRIES LIMITED & ORS. v. AMARLAL V.JUMANI AND ANR. [2012] 3  S.C.R. 114

s.320 – Compounding of offence – Whether sanction of a scheme u/s.391 of the Companies Act, 1956 amounts to compounding of an offence u/s.138 read with s.141 of the N.I. Act and whether such sanction has the effect of termination or dismissal of complaint proceedings under N.I. Act – Held: The effect of approval of a scheme of compromise and arrangement u/s.391 of the Companies Act is that it binds the dissenting minority, the company as also the liquidator if the company is under winding up – A scheme u/s.391 of the Companies Act does not have the effect of creating new debt – The scheme simply makes the original debt payable in a manner and to the extent provided for in the scheme – The offence under the N.I. Act which has already been committed prior to the scheme does not get automatically compounded only as a result of the said scheme – There are various features in the compounding of an offence and those features must be satisfied before it can be  claimed by  the offender  that the  offence has  been compounded  – Compounding  of an  offence cannot  be achieved indirectly  by sanctioning  of a  scheme by  the Company Court – Negotiable Instruments Act, 1881 – s.138 r/ w s.141 – Companies Act, 1956 – s.391.


YOGENDRA PRATAP SINGH v. SAVITRI PANDEY & ANR. [2012] 5 S.C.R. 192

Negotiable Instruments Act, 1881 - ss. 138(c) and 142(b) -  Offence  punishable  u/s.  138  -  Whether  cognizance  of  an offence could be taken on the basis of a complaint filed before expiry of the period of 15 days stipulated in the notice required to  be  served  upon  the  drawer  of  the  cheque  in  terms  of  s. 138(c) - If no, whether the complainant could be permitted to present the complaint again notwithstanding the fact that the period of one month stipulated u/s. 142 (b) for the filing of such a  complaint  has  expired  -  Conflict  in  the  judicial pronouncements  -  Matter  referred  to  the  larger  bench  - Reference to larger bench.

ANEETA  HADA v. M/S. GODFATHER TRAVELS & TOURS PVT. LTD. [2012] 5 S.C.R. 503

Liability:  Vicarious  liability  -  Held:  An  authorised signatory of a company cannot be held liable for prosecution u/s.138 of the Negotiable Instruments Act, 1881 or u/s.67 r/w s.85 of Information Technology Act, 2000 without the company being arraigned as an accused - Information Technology Act, 2000 - ss.67, 85 - Negotiable Instruments Act, 1881 - ss.138, 141.

Negotiable  Instruments  Act,  1881  -  s.141  -  Statutory intendment  of  -  Held:  s.147  stipulates  that  if  a  person  who commits  offence  u/s.138  of  the  Act  is  a  company,  the company  as  well  as  every  person  in-charge  of  and responsible to the company for the conduct of business of the company at the time of commission of offence is deemed to be guilty of the offence - The criminal liability on account of dishonour  of  cheque  primarily  falls  on  the  drawee  company and is extended to the officers of the company and as there is a specific provision extending the liability to the officers, the conditions  incorporated  in  s.141  are  to  be  satisfied  -  Thepower of punishment  is vested in the legislature  and that is absolute  in  s.141  of  the  Act  which  clearly  speaks  of ommission of offence by the company - Applying the doctrine of strict construction, commission of offence by the company is  an  express  condition  precedent  to  attract  the  vicarious liability of others - Thus, the words "as well as the company" appearing in the Section make it clear that when the company can  be prosecuted,  then only  the persons  mentioned in  the other  categories  could  be  vicariously  liable  for  the  offence subject to the averments in the petition and proof thereof - For maintaining the prosecution u/s.141 of the Act, arraigning of a  company  as  an  accused  is  imperative  -  The  analysis pertaining  to  s.141  of  the  Act  would  squarely  apply  to  the 
Information  Technology Act,  2000.

MRS. ANITA MALHOTRA v. APPAREL EXPORT PROMOTION COUNCIL & ANR. [2011] 12 S.C.R.

s.138 – Complaint against a Director of a Company for dishonour  of  cheque  –  HELD:  Such  a  complaint  should specifically spell out how and in what manner the Director was in charge of or was responsible to the accused Company for conduct of its business; and mere bald statement, as in the instant case, that she was in charge of and was responsible to the company for conduct of its business is not sufficient.

R. VIJAYAN v. BABY AND ANR. [2011]  14  (ADDL.)  S.C.R.  712
s.138 – Sentencing under – Respondent found guilty u/ s.138  –  Magistrate  sentenced  her  to  pay  a  fine  of  Rs.2000 and in default to undergo imprisonment and also directed her to  pay  Rs.20,000  as  compensation  to  the  complainant  and in  default  to  undergo  simple  imprisonment  for  three  months –  Held:  Magistrate  having  levied  fine  of  Rs.2,000/-,  it  was impermissible  to  levy  any  compensation  having  regard  to s.357(3),  Cr.P.C.  –  Code  of  Criminal  Procedure,  1973  – s.357(3).

s.138 – Purpose of enactment – Held: Cases arising u/ s.138 are really civil cases masquerading as criminal cases –  The  avowed  object  of  Chapter  XVII  of  the  Act  is  to “encourage  the  culture  of  use  of  cheques  and  enhance  the credibility of the instrument” – It provides a single forum and single  proceeding,  for  enforcement  of  criminal  liability  (for dishonouring  the  cheque)  and  for  enforcement  of  the  civil
liability  (for  realization  of  the  cheque  amount)  thereby obviating the need for the creditor to move two different fora for relief –The apparent intention is to ensure that not only the offender  is  punished,  but  also  ensure  that  the  complainant
invariably  receives  the  amount  of  the  cheque  by  way  of compensation  u/s.357(1)(b),  Cr.P.C.  –  Uniformity  and is, in the opinion of the court, recoverable by such person in a Civil Court – Thus, if compensation could be paid from out of the fine, there is no need to award separate compensation –  Only  where  the  sentence  does  not  include  fine  but  only imprisonment  and  the  court  finds  that  the  person  who  has suffered any loss or injury by reason of the act of the accused person, requires to be compensated, it is permitted to award compensation u/s.357(3) – Negotiable instruments Act, 1881 –  Compensation.

K.N. GOVINDAN KUTTY MENON v. C.D. SHAJI [2011]  15  (ADDL.)  S.C.R.  447

Legal  Services  Authorities  Act,  1987  –  s.21  – Interpretation of – When a criminal case filed u/s.138 of the Negotiable  Instruments  Act,  referred  to  by  the  Magistrate
Court to Lok Adalat is settled by the parties and an award is passed  recording  the  settlement,  can  it  be  considered  as  a decree of a civil court and thus executable – Held: In view of the unambiguous language of s.21 of the Act, every award of
the Lok Adalat shall be deemed to be a decree of a civil court and as such it is executable by that Court – The Act does not make  out  any  such  distinction  between  the  reference  made by a civil court and criminal court – There is no restriction on
the power of the Lok Adalat to pass an award based on the compromise arrived at between the parties in respect of cases referred  to  by  various  Courts  (both  civil  and  criminal), Tribunals,  Family  court,  Rent  Control  Court,  Consumer Redressal Forum, Motor Accidents Claims Tribunal and other Forums of similar nature – Even if a matter is referred by a criminal court u/s.138 of the Negotiable Instruments Act, by
virtue of the deeming provisions, the award passed by the Lok Adalat based on a compromise has to be treated as a decree capable of execution by a civil court – Negotiable Instruments Act, 1881– s.138.

KOLLA  VEERA  RAGHAV  RAO v. GORANTALA  VENKATESWARA  RAO AND  ANR. [2011]  2  S.C.R.  364 
Code of Criminal Procedure, 1973: s.300(1) – Scope of – Held: s.300(1) is wider than Article 20(2) of the Constitution –  While,  Article  20(2)  only  states  that  ‘no  one  can  be prosecuted  and  punished  for  the  same  offence  more  than once’, s.300 (1) states that no one can be tried and convicted for the same offence or even for a different offence but on the same  facts  –  In  the  instant  case,  accused  was  already
convicted u/s.138 of Negotiable Instruments Act, 1881 – He cannot  be  again  tried  or  punished  on  the  same  facts  under s.420  or  any  other  provision  of  IPC  or  any  other  statute  – Constitution  of  India,  1950  – Article  20(2)  –  Negotiable
Instruments Act, 1881 – s.138 – Penal Code, 1860 – s.420.

HARSHENDRA  KUMAR  D. v. REBATILATA  KOLEY  ETC. [2011]  2  S.C.R.  670
ss.  138  and  141(1)  –Vicarious  liability  of  Director  of  a company  –Complaints  against  a  Company  for  dishonour  of cheques  –Metropolitan  Magistrate  directing  summons  to issue to accused –Revision petitions by one of the Directors contending that he had resigned as Director of the Company before issuance of the cheques by it –Held :The words “every person  who,  at  the  time  of  the  offence  was  committed”,
occurring in s.141 are not without significance, and indicate that criminal liability of a Director must be determined on the date  the  offence  is  alleged  to  have  been  committed  –A Director  whose  resignation  has  been  accepted  and  notified
to Registrar of Companies, cannot be made accountable for the  acts  of  the  company  committed  after  his  resignation  – Complaints  against  Director  concerned  quashed  – Companies  Act,  1956  –s.303  –Code  of  Criminal  Procedure, 1973 –ss.397, 401 r/w s. 402.

MILIND SHRIPAD CHANDURKAR v. KALIM M. KHAN & ANR. [2011]  3  S.C.R.  698

Negotiable  Instruments  Act,  1881  –  ss.138  and  142  – Complaint  u/s.  138  –  Locus  standi  of  the  complainant  – Respondent no.1 issued cheque in favour of proprietary firm towards  discharge  of  a  pre-existing  legal  liability  –  Cheque dishonoured – Appellant claimed to be proprietor of the said proprietary firm – He filed complaint against respondent no.1 u/s.138  –  Both  trial  court  and  appellate  court  convicted respondent  no.1  –  High  Court,  however,  set  aside  the
conviction on the ground that appellant could not produce any evidence to establish that he was proprietor of the proprietary concern in question and, thus, he had no locus standi to file the complaint – Justification – Held: Justified – A person can maintain a complaint u/s.138, provided he is either a “payee” or  “holder  in  due  course”  of  the  cheque  –  In  a  case  of  this nature, where the “payee” is a company or a sole proprietary concern, such issue cannot be adjudicated upon taking any guidance from s.142 but the case shall be governed by the general law i.e. the Companies Act 1956 or by civil law where an individual carries on business in the name or style other than his own name – In such a situation, he can sue in his own  name  and  not  in  trading  name,  though  others  can  sue him in the trading name – It is evident that the firm in question was  the  “payee”  of  the  cheque  and  the  appellant  could  not claim to be the “payee”, nor could he be the “holder in due course”,  unless  he  established  that  the  cheques  had  been issued to him or in his favour or that he was the sole proprietor
of the firm and being so, he could also be payee himself and thus, entitled to make the complaint – The appellant failed to produce  any  documentary  evidence  to  connect  himself  with the said firm, nor made any attempt to adduce any additional evidence at the appellate stage, in spite of the fact that the respondent raised this issue from the initial stage.

KAUSHALYA  DEVI  MASSAND v. ROOPKISHORE KHORE [2011]  3  S.C.R.  879
s.138  –  Complaint  of  dishonour  of  cheques  –  Accused sentenced  by  Magistrate  to  pay  a  fine  of  Rs.4  lakh  to complainant  –  High  Court  enhancing  the  amount  of  fine  by Rs.  2  lakh  –  Appeal  by  complainant  contending  for  jail sentence to the accused – Held: The gravity of a complaint under the Act cannot be equated with an offence under the provisions of the Penal Code or other criminal offences – An offence  u/s  138  of  the  Act  is  almost  in  the  nature  of  a  civil wrong  which  has  been  given  criminal  overtones  –  The Magistrate, in his wisdom was of the view that imposition of a fine  payable  as  compensation  to  the  complainant  was sufficient  to  meet  the  ends  of  justice  –  Besides,  after  an interval of 14 years, the Court is not inclined to interfere with the order of the High Court impugned in the appeal, except to  the  extent  of  increasing  the  amount  of  compensation payable by a further sum of Rs.2 lakh.

RALLIS INDIA LTD. v. PODURU VIDYA BHUSAN & ORS. [2011]  5  S.C.R.  289

Negotiable  Instruments  Act,  1881:  s.141  –  Offence  by companies/firms  –  Dishonour  of  cheque  issued  by partnership firm – Complaint u/s.138 against firm and partners including  respondents  –  Averment  in  the  complaint  that  all partners were looking after day to day affairs of the accused firm and their liability was joint as well as several – Quashing of complaint sought by respondents on the ground that they had severed their connections with the firm much prior to the issuance  of  dishonoured  cheques  –  High  Court  discharged the respondents – On appeal, held: Specific averments were made against the respondents that they were the partners of the firm, at the relevant point of time and were looking after day to day affairs of the partnership firm – Burden of proof that at  the  relevant  point  of  time  they  were  not  partners,  lay specifically on them – The question as to whether or not they were partners in the firm during the relevant period is one of fact, which has to be established in trial – High Court should not  have  interfered  with  the  cognizance  of  the  complaints having  been  taken  by  the  trial  court  and  discharged  the respondents  of  the  said  liability  at  the  threshold  –  Code  of Criminal  Procedure,  1973  –  s.482.

ANIL  SACHAR  & ANR.v.M/S SHREE NATH SPINNERS P. LTD. & ORS. ETC. [2011]  9  S.C.R.  328
ss.  138  and  139  –  Presumption  in  favour  of  holder  of cheque – Cheques issued by one of the two sister concerns for dues towards the goods supplied to the other of the said concerns  –  Dishonour  of  cheques  –  Complaints  –  Acquittal of accused on the ground that goods had been supplied to one  company  while  cheques  were  issued  by  the  other  and there was no liability of the company issuing the cheques – HELD:  The  complainants  had  established  before  the  trial court  that  there  was  an  understanding  among  the complainants and the accused that in consideration of supply of goods to one company, the other was to make the payment – This understanding was on account of the fact that both the companies  were  sister  concerns  and  their  Directors  were common – In the circumstances, it has been proved that in consideration  of  supply  of  goods  to  one  sister  concern,  the other had made the payment – The trial court ought to have considered provisions of s.139 of the Act, which make it clear that there is a presumption with regard to consideration when a cheque has been issued by the drawer of the cheque – Of course, the presumption referred to in s.139 is rebuttable – In  the  instant  case,  no  effort  was  made  for  rebuttal  of  the presumption  and,  therefore,  the  presumption  must  go  in favour of the holder of the cheques – Accused held guilty of the offence punishable u/s 138 – On the date of hearing the accused on question of sentence, the records indicated that one of the accused had died – Therefore, appeal as regards him  stands  abated  –  In  the  circumstances,  imposition  of  a fine  of  Rs.10,00,000/-  on  the  other  accused  payable  to  the complainants as compensation would meet the ends of justice –  Ordered  accordingly  –  Code  of  Criminal  Procedure,  1973 – s.235(2).


TAMEESHWAR  VAISHNAV v. RAMVISHAL  GUPTA [2010]  1  S.C.R.  204
Negotiable Instruments Act, 1881 – ss.138(b) and 142 – Notice u/s 138(b) – Receipt of, by drawer of cheque – Drawee of cheque failing to take action within stipulated time u/s 138 – Entitlement of the drawee of cheque to issue Second Notice in  respect  of  same  cheque  and  to  file  complaint  u/s  138  – Held: Not entitled – Cause of action for a complaint u/s 138 arises only once, with the issuance of notice after dishonour
of cheque and receipt thereof.

RANGAPPA v. SRI MOHAN [2010]  6  S.C.R.  507

Negotiable  Instruments  Act,  1881:
ss.  139  and  138  –  Presumption  in  favour  of  holder  – Manner  of  rebuttal  of  statutory  presumption  –  Held: Presumption  mandated  by  s.  139  includes  existence  of legally  enforceable  debt  or  liability  –  It  is  in  nature  of rebuttable  presumption  –  Accused  can  raise  a  defence wherein existence of legally enforceable debt or liability can be  contested  –  However,  initial  presumption  favours  the complainant – Reverse onus clause is included and the same is guided by the test of proportionality – Accused cannot be expected  to  discharge  an  unduly  high  standard  of  proof  – Standard  of  proof  for  rebutting  presumption  is  of ‘preponderance of probabilities’ – If accused is able to raise a probable defence which creates doubts about the existence of legally enforceable debt or liability, prosecution can fail – On facts, dishonour of cheque on account of ‘stop payment’ instructions sent by accused – Complaint u/s. 138 – Acquittal by  trial  court  in  view  of  discrepancies  in  the  complainant’s version  –  Conviction  by  High  Court  since  accused  did  not raise a probable defence to rebut the statutory presumption, does  not  call  for  interference  –  Complaint  disclosed  prima facie  existence  of  a  legally  enforceable  debt  or  liability  – Accused failed to reply to the statutory notice u/s.138.

s. 138 – Applicability of – Held: s. 138 is applicable when cheque  is  dishonoured  on  account  of  ‘stop  payment’instructions sent by accused to his bank in respect of post- dated cheque, irrespective of insufficiency of funds.

P.J. AGRO TECH LIMITED & ORS. v. WATER  BASE  LIMITED  [2010]  9  S.C.R.  119
s.138—Dishonour of cheque—Liability for default—Held: In order to attract the provisions of s. 138, the cheque must have been drawn by a person on the account maintained by him  with  the  banker—In  the  instant  case,  the  cheque  in question was neither drawn on the account maintained by the company against which the complaint was made, nor was it signed by any of its directors and, therefore, the company and its directors cannot be made liable for the default committed by another person—Interpretation of statutes.

Negotiable Instruments Act, 1881, S.138, 139 - 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. (Abdul Hameed Vs State of Rajasthan & Anr.) 2004(2) Civil Court Cases 321 (Rajasthan) : 2004(2) Criminal Court Cases 194 (Rajasthan)

Negotiable Instruments Act, 1881, S.138, 142 - 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.) 

Negotiable Instruments Act, 1881, S.138, Civil Procedure Code, 1908, S.47 - 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. (Smt.Gayathri Vs Smt.Clement Mary) 2003(2) Civil Court Cases 308 (Karnataka) 

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, Ss.62,64 & 65 - 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.)

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.200, 2(g) - 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)

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.200, Evidence Act, 1872, S.3 - 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)

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.204 - 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)

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.204(2) - 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. (Fakirappa Vs Shiddalingappa & Anr.) 2002(1) Criminal Court Cases 689 (Kant.)

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, Ss.204, 482 - 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.)

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.219 - 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)

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.254(2) - 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)

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.256 - 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)

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.256 - 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) 

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.256 - 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) 

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.256 - 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.) 

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.256 - 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) 

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.256 - 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.) 

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, Ss.256, 378(5), 401(4) & 482 - 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) 

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, Ss.256, 482 - 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. (Sant Lal Bhatia Vs City Credit and Leasing Company) 2002(3) Criminal Court Cases 291 (P&H) 

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.258 - 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)

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.300, Indian Penal Code, 1860, S.420 - 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)

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.320 - 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.)

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.357 - 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)

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.357 - 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. (P.Mazher Vs State of A.P. rep by Public Prosecutor) 2004(1) Criminal Court Cases 491 (A.P.)

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.357(2) - 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) 

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, Ss.357, 431 - 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. (N.E.Varghese Vs State of Kerala) 2002(3) Criminal Court Cases 179 (Kerala)

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, Ss.385 & 386 - 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)

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, Ss.391 & 309(1) - 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)

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, Ss.470 & 473 r/w Limitation Act, 1963, S.14 - 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.) 

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.482 - 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.)

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.482 - 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.)

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.482 - 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) 

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.482 - 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) 

Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.482 - 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)

Negotiable Instruments Act, 1881, S.138, Evidence Act, 1872, S.73 - 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. (Jai Prakash Vs State of Rajasthan & Anr.) 2005(2) Criminal Court Cases 690 (Rajasthan)

Negotiable Instruments Act, 1881, S.138, Evidence Act, 1872, S.73 - 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)

Negotiable Instruments Act, 1881, S.138, Indian Penal Code, 1860, Ss.406, 420 - 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)

Negotiable Instruments Act, 1881, S.138, Indian Penal Code, 1860, S.420 - 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)

Negotiable Instruments Act, 1881, S.138, Indian Penal Code, 1860, Ss.420, 468, Criminal Procedure Code, 1973, S.256 - 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) 

Negotiable Instruments Act, 1881, S.138, Proviso (a) - 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)

Negotiable Instruments Act, 1881, S.138, Proviso (b) - 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)

Negotiable Instruments Act, 1881, S.138 - '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'. (Mandadi Ram Reddy & Anr. Vs State of A.P. & Anr.) 2004(1) Criminal Court Cases 17 (A.P.)

Negotiable Instruments Act, 1881, S.138 - '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)

Negotiable Instruments Act, 1881, S.138 - '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)

Negotiable Instruments Act, 1881, S.138 - '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)

Negotiable Instruments Act, 1881, S.138 - '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)

Negotiable Instruments Act, 1881, S.138 - “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)

Negotiable Instruments Act, 1881, S.138 - “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) 

Negotiable Instruments Act, 1881, S.138 - “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)

Negotiable Instruments Act, 1881, S.138 - “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)

Negotiable Instruments Act, 1881, S.138 - “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)

Negotiable Instruments Act, 1881, S.138 - “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.)

Negotiable Instruments Act, 1881, S.138 - 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. (City Automobiles & Anr. Vs J.K.Industries Limited & Anr.) 2002(1) Criminal Court Cases 553 (A.P.)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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.)

Negotiable Instruments Act, 1881, S.138 - 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.)

Negotiable Instruments Act, 1881, S.138 - 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.)

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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.)

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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. (Lillykutty Vs Lawrance) 2004(2) Civil Court Cases 38 (Kerala) : 2003(3) Criminal Court Cases 601 (Kerala) 

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - Cheque dishonoured - Signatures on cheque incomplete - Proceedings quashed. (Vinod Tanna Vs Zaheer Siddiqui) 2002(1) Criminal Court Cases 625 (S.C.)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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. (Hashmikant M.Sheth Vs State of Gujarat) 2004(4) Criminal Court Cases 553 (Gujarat)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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.) 

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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.)

Negotiable Instruments Act, 1881, S.138 - 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.)

Negotiable Instruments Act, 1881, S.138 - 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.)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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.) 

Negotiable Instruments Act, 1881, S.138 - 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.) 

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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. (M/s Kumar Rubber Industries Vs Sohan Lal) 2002(2) Criminal Court Cases 83 (P&H)

Negotiable Instruments Act, 1881, S.138 - 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.)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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. (City Automobiles & Anr. Vs J.K.Industries Limited & Anr.) 2002(1) Criminal Court Cases 553 (A.P.)

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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.) 

Negotiable Instruments Act, 1881, S.138 - 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.)

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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. (Mandadi Ram Reddy & Anr. Vs State of A.P. & Anr.) 2004(1) Criminal Court Cases 17 (A.P.)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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.)

Negotiable Instruments Act, 1881, S.138 - 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.) 

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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.(Mandadi Ram Reddy & Anr. Vs State of A.P. & Anr.) 2004(1) Criminal Court Cases 17 (A.P.)

Negotiable Instruments Act, 1881, S.138 - 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.)

Negotiable Instruments Act, 1881, S.138 - 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.) 

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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. (V.A.Sivaraman Vs Vasu) 2003(2) Criminal Court Cases 496 (Kerala) 

Negotiable Instruments Act, 1881, S.138 - 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.)

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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.)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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.)

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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. (Mahendra Agrawal Vs Gopi Ram Mahajan) 2002(3) Criminal Court Cases 527 (Rajasthan) 

Negotiable Instruments Act, 1881, S.138 - 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.) 

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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. (K.R.Indira Vs Dr.G.Adinarayana) 2004(1) Criminal Court Cases 232 (S.C.)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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.)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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.)

Negotiable Instruments Act, 1881, S.138 - 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.)

Negotiable Instruments Act, 1881, S.138 - 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)  

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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.)

Negotiable Instruments Act, 1881, S.138 - 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.)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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. (Dr.Yalamachili Vs Nalgonda District Co-op.Central Bank) 2003(2) Criminal Court Cases 353 (A.P.) 

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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.)

Negotiable Instruments Act, 1881, S.138 - 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.)

Negotiable Instruments Act, 1881, S.138 - 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.)

Negotiable Instruments Act, 1881, S.138 - 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.) 

Negotiable Instruments Act, 1881, S.138 - 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. (N.E.Varghese Vs State of Kerala) 2002(3) Criminal Court Cases 179 (Kerala)  

Negotiable Instruments Act, 1881, S.138 - 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.)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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.)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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.) 

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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.)

Negotiable Instruments Act, 1881, S.138 - 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.)

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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.)  

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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) 

Negotiable Instruments Act, 1881, S.138 - 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)

Negotiable Instruments Act, 1881, S.138 Proviso (b) - '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)

Negotiable Instruments Act, 1881, S.138 Proviso (b) - “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)

Negotiable Instruments Act, 1881, S.138(b) - 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)

Negotiable Instruments Act, 1881, S.138(b) - 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)

Negotiable Instruments Act, 1881, Ss.138, 87 - 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)

Negotiable Instruments Act, 1881, Ss.138, 87 - 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) 

Negotiable Instruments Act, 1881, Ss.138, 138 - 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. (S.S.Ummul Habiba, Proprietor, M/s.Alim Auto supplies Vs B.Rajendran) 2004(4) Criminal Court Cases 423 (Madras)

Negotiable Instruments Act, 1881, Ss.138 & 141 - 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) 

Negotiable Instruments Act, 1881, Ss.138 & 141 - 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)

Negotiable Instruments Act, 1881, Ss.138 & 141 - 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)  

Negotiable Instruments Act, 1881, Ss.138, 141, Criminal Procedure Code, 1973, Ss.223, 255 an 482 - 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. (K.Chandrasekhar & Anr. Vs Mac Charles India Limited, Bangalore) 2005(2) Civil Court Cases 100 (Karnataka) : 2005(2) Criminal Court Cases 434 (Karnataka)

Negotiable Instruments Act, 1881, Ss.138, 141 - “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.) 

Negotiable Instruments Act, 1881, Ss.138, 141 - 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.)

Negotiable Instruments Act, 1881, Ss.138, 141 - 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) 

Negotiable Instruments Act, 1881, Ss.138, 141 - 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.)

Negotiable Instruments Act, 1881, Ss.138, 141 - 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)

Negotiable Instruments Act, 1881, Ss.138, 141 - 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)

Negotiable Instruments Act, 1881, Ss.138, 141 - 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.) 

Negotiable Instruments Act, 1881, Ss.138, 141 - 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.)

Negotiable Instruments Act, 1881, Ss.138(b) and 141 - 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)

Negotiable Instruments Act, 1881, Ss.138 & 142 - 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. (Rakesh Raja Vs Naru Mohammed Sheikh) 2005(2) Civil Court Cases 345 (Rajasthan) : 2005(2) Criminal Court Cases 705 (Rajasthan)

Negotiable Instruments Act, 1881, Ss.138 & 142 - 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)

Negotiable Instruments Act, 1881, Ss.138 & 142 - 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)

Negotiable Instruments Act, 1881, Ss.138 to 142, Repealing and Amending Act, 2001, General Clauses Act, 1897, S.6A - 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) 

Negotiable Instruments Act, 1881, Ss.138, 142 - 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.)

Negotiable Instruments Act, 1881, Ss.138, 142 - 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. (A.Gangadhar Vs K.Prasad) 2005(2) Civil Court Cases 436 (Orissa)

Negotiable Instruments Act, 1881, Ss.138, 142 - 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.) 

Negotiable Instruments Act, 1881, Ss.138, 142 - 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.) 

Negotiable Instruments Act, 1881, Ss.138, 142 & 53 - 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)

Negotiable Instruments Act, 1881, Ss.138, 143 - 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)

Negotiable Instruments Act, 1881, Ss.138, 145, Criminal Procedure Code, 1973, S.200 - 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)

Negotiable Instruments Act, 1881, Ss.138, 147 - 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)

Negotiable Instruments Act, 1881, S.139 - 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.) 

Negotiable Instruments Act, 1881, S.139 - 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. (Thekkan & Co. Vs Anitha) 2004(1) Criminal Court Cases 65 (Kerala) : 2004(2) Civil Court Cases 13 (Kerala)

Negotiable Instruments Act, 1881, S.139 - 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.)

Negotiable Instruments Act, 1881, S.139 - 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)

Negotiable Instruments Act, 1881, S.139 - 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)

Negotiable Instruments Act, 1881, S.139 - '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.) 

Negotiable Instruments Act, 1881, S.141 - 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) 

Negotiable Instruments Act, 1881, S.141 - 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)

Negotiable Instruments Act, 1881, S.141 - 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.) 

Negotiable Instruments Act, 1881, S.142, Criminal Procedure Code, 1973, S.473, Limitation Act, 1963, S.5 - 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.) 

Negotiable Instruments Act, 1881, S.142(a) - 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.)

Negotiable Instruments Act, 1881, S.142(a) - 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.)

Negotiable Instruments Act, 1881, S.142(a) - 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.)

Negotiable Instruments Act, 1881, S.141 - 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)

Negotiable Instruments Act, 1881, S.147 - 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. (Ami Lal Vs Mahavir Prasad Surendra Mohan) 2005(2) Civil Court Cases 171 (Rajasthan) : 2005(2) Criminal Court Cases 479 (Rajasthan)