Introduction

Welcome to the official blog of the Law Offices of Kr. Vivek Tanwar Advocate and Associates, where we are dedicated to providing litigation support services for matters related to Dishonored Cheques. In today’s blog post, we aim to shed light on the prevailing issues surrounding Dishonored Cheques, the legal framework in place for their protection, and the steps we can take as a society to combat these acts. Join us as we explore this critical subject and empower you with the knowledge to protect your rights and safety.

The Negotiable Instrument Act, of 1881 came into force on 1st March 1882 to govern different instruments used in place of fiat money. A new Chapter XVII was added on 1st April 1989 to prevent fraud in the mercantile community, particularly concerning cheques. This amendment aimed to preserve the importance of cheques as an alternative payment mode and ensure greater vigilance in financial matters. It is noteworthy that electronic fund transfers are also governed by the provisions of Chapter XVII, making it crucial to understand Section 138, which criminalizes dishonouring such instruments.

What Is The Negotiable Instruments Act, of 1881?

The Negotiable Instruments Act, of 1881, is a crucial piece of legislation that governs various financial instruments like cheques, promissory notes, and bills of exchange. Among its provisions, Section 138 stands out as a significant deterrent against dishonouring cheques. The section aims to maintain trust in the financial system by imposing penalties on those who default on their obligations. It will delve into the nuances of Section 138 and the consequences it entails for offenders.

Understanding Section 138:

Section 138 of the Negotiable Instruments Act deals specifically with the dishonour of cheques. According to this provision, if a cheque issued by a person for the discharge of any debt or liability is dishonoured due to insufficient funds or if it exceeds the amount available in the drawer’s account, the drawer becomes liable for prosecution. The payee of the dishonoured cheque has the right to demand payment by issuing a notice within 30 days of the dishonour.

Punishment under Section 138:

The punishment for an offence under Section 138 is stringent to ensure that offenders take the law seriously. If found guilty, the accused may face both imprisonment and a monetary fine.

  1. Imprisonment: The drawer can be imprisoned for a term that may extend up to two years. This provision is aimed at acting as a deterrent against fraudulent practices involving dishonoured cheques.
  2. Monetary Fine: In addition to imprisonment, the accused may also be liable to pay a fine. The amount of the fine can be up to twice the value of the dishonoured cheque.

Compounding the Offense:

In certain cases, the offence under Section 138 can be compounded, subject to the permission of the court. Compounding involves the withdrawal of the case by mutual consent, typically in exchange for the payment of a certain sum agreed upon by the parties involved.

Significance of Section 138:

Section 138 plays a crucial role in promoting financial discipline and safeguarding the sanctity of negotiable instruments. It upholds the credibility of the banking system, ensures that transactions are conducted smoothly, and encourages people to honour their financial commitments.

Issues and Challenges:

Despite its significance, the implementation of Section 138 has faced some challenges:

  1. Pendency of Cases: The high number of pending cases has been a concern, leading to delays in justice. To address this, the establishment of fast-track courts and the introduction of alternative dispute resolution mechanisms have been proposed.
  2. Criminal Overtone: Some experts argue that imposing criminal liability for civil disputes may be harsh and could be detrimental to the ease of doing business. However, proponents argue that the criminal aspect provides a swifter remedy, unlike civil proceedings which can take longer.

Why Does Section 138 NI Act Say

Section 138 of the NI Act deals with the prosecution for dishonouring a “cheque.” A “cheque” is defined in Section 6 as a bill of exchange, payable on demand, with specific parties involved. Mere dishonour of a cheque is not punishable, but it becomes an offence if certain conditions are met:

  1. The cheque must be presented to the bank within three months of its issuance.
  2. The bank must return the cheque unpaid due to insufficient funds or a mutual arrangement with the drawer.
  3. The payee must send a notice to the drawer within 30 days of receiving the bank’s memo of dishonour.
  4. If the drawer fails to pay within 15 days of receiving the notice, the offence is established.

All of these conditions are mandatory to invoke Section 138. Offenders can face imprisonment for up to 2 years, a fine up to twice the amount of the disputed cheque, or both. It’s important to note that there is a one-month time limit from the date of the cause of action, as stated in Section 142(1)(b). However, the proviso allows for the extension of the deadline in cases where there is a valid reason for the delay.

Nature of offence under Section 138 NI Act

In the case of Kaushalya Devi Massand v. Roopkishore Khore (2011), the Supreme Court made a significant observation regarding Section 138 of the Negotiable Instrument Act, of 1881. It stated that this particular offence should not be equated with any offence under the Indian Penal Code, 1860. The reason is, Section 138 establishes liability for a civil wrong but with criminal implications.

In this case, the appellant was an elderly widow who had been tirelessly fighting against the respondent for 14 long years. The dispute arose when the appellant was supposed to receive Rs. 3,00,000 as payment for a property. However, the cheques issued by the respondent were dishonoured due to insufficient funds. The appellant argued that imprisonment of the offender was necessary to restore people’s faith in the judicial system and to act as a deterrent against those who misuse cheques with malicious intentions to defraud payees.

Both the High Court and the Supreme Court, however, opined that there should be specific circumstances in a case to justify the imposition of imprisonment on the accused. In this instance, there were no such special circumstances, apart from the fact that the victim was an elderly widow. Consequently, the High Court increased the compensation from Rs. 4,00,000 to Rs. 6,00,000, and the Supreme Court further raised it to Rs. 8,00,000. The courts held that in such cases, monetary compensation can sufficiently compensate the victim, eliminating the need for an additional sentence of imprisonment.

The cases of Kaushalya Devi Massand v. Roopkishore Khore (2011) and M/s Meters and Instruments v. Kanchan Mehta (2017) established that Section 138 offences are treated as civil wrongs and only lead to imprisonment in special circumstances. The trial follows a summary procedure, providing a robust remedy. Courts prioritize compensating the victim over penalizing the accused, as seen in P. Mohan Raj v. M/s Shah Brothers Ispat Pvt. Ltd. (2021).

In Rangappa v. Sri Mohan (2010) and Indian Bank Association and Ors. v. Union of India (2013), the Supreme Court observed that Section 138 offences are regulatory, involving civil wrongs affecting private parties. Section 139 reverses the burden of proof on the accused, requiring them to prove “preponderance of probabilities” instead of “beyond a reasonable doubt” as in other criminal offences.

Judicial pronouncements on decriminalizing Section 138 NI Act:

 In Makwana Mangaldas Tulsidas v. State of Gujarat (2020), the court observed that Section 138, originally justified as a civil wrong in 1989, could now be decriminalized. The Bombay High Court also considered this perspective in Karmayogi Shankarraoji Patil and Ors. v. Ruia & Ruia Pvt. Ltd. and Ors. (2022). In Gimpex Private Ltd. v. Manoj Goel (2021), the Supreme Court, relying on a notice from the Ministry of Finance, highlighted that Section 138’s criminal offence status has negatively impacted the ease of doing business and investment in India, reinforcing the potential for decriminalization.

Suggestions by the legislature:

In its 213th Report in 2008, the Law Commission addressed the hardships faced by cheque payees due to dishonest issuers. To resolve this, they proposed forming fast-track courts at the ministerial level, aiming to expedite cases and restore public trust in the judiciary. The court also acknowledged and implemented these recommendations in cases like In Re: Expeditious Trial of Cases Under Section 139 of the NI Act, 1881. Additionally, a notice issued in June 2020 by the Ministry of Finance discussed the decriminalization of minor offences, including Section 138, to attract foreign investors and improve the ease of doing business in India.

India’s commitment to the International Covenant on Civil and Political Rights (ICCPR) also supports the argument against criminal liability for civil wrongs. The need to decriminalize such offences has been emphasized in various judgments, such as Jolly George Verghese and Anr. v. Bank of Cochin (1980). The United Kingdom and the United States have also taken steps to decriminalize imprisonment for debtors unable to repay their debts.

Negative Impact of Decriminalization of Section 138:

If Section 138 is decriminalized, there might be no punishment for fraudulent acts, providing an incentive for dishonest individuals. Accepting Post Dated Cheques (PDCs) as security in the mercantile community, relying on the deterrence of dishonouring cheques, will be affected. While complainants can still file FIRs under Section 420 of the Indian Penal Code for cheating, this will burden the courts, defeating the purpose of decriminalizing cheques. Decriminalization may encourage cash transactions, hindering the goal of becoming a cashless economy and increasing the circulation of black money.

Alternatives to Decriminalization of Section 138:

The legislature can set a limit on the sum for which there are no criminal consequences, but beyond that limit, criminal consequences can apply. The drawer’s CIBIL score, reflecting their financial reliability, can be lowered if their cheques bounce, deterring them from dishonouring cheques. Promoting alternative dispute resolution methods like mediation and conciliation can help reduce case pendency.

Scotland’s approach involves attaching funds to the drawer’s bank account until the cheque is honoured or the payee provides a letter stating they have no further interest in the cheque. In Japan, dishonouring a cheque twice in six months can result in a two-year suspension of the bank account. It’s worth noting that in countries like England, Australia, Singapore, Malaysia, France, and the United Arab Emirates, dishonouring cheques leads to civil remedies for the payee, rather than criminal consequences.

Is insufficiency of funds the sole reason to invoke Section 138 for dishonouring a cheque?

Section 138 of the Negotiable Instrument Act, of 1881 can be invoked not only for dishonouring due to insufficient funds but also for cases like signature mismatches, as held in Laxmi Dyechem v. State of Gujarat (2012). The Supreme Court ruled that dishonouring due to a closed account is also covered under Section 138, as seen in NEPC MICON Ltd. and Ors. v. Magma Leasing (1999). However, lost cheques and time-barred debts are exceptions and do not fall under Section 138, based on the judgments in Rajkumar Khurana v. State of NCT of Delhi (2009) and Sasseriyil Joseph v. Devassia (2001) respectively.

Does Section 138 apply to post-dated cheques and blank cheques?

The Supreme Court ruled that dishonouring post-dated cheques falls under Section 138 if the liability exists on the dishonour date (Sampelly Satya Narayan Rao v. Indian Renewable Energy Development, 2016). Additionally, in cases of blank cheques voluntarily signed and given to the payee, Section 138 and the presumption of Section 139 apply (M/s Kalamani Tex v. P. Balasubramaniam, 2021; Raj Singh v. Yashpal Singh Parmar, 2022).

Is it possible to represent a dishonoured cheque?

In Sadanandan Bhadran v. Madhavan Sunil Kumar (1998), the Supreme Court held that only one cause of action arises from a cheque, and re-presenting a dishonoured cheque won’t create a new one. However, MSR Leathers v. S. Palaniappan (2013) contradicted this, stating that a dishonoured cheque can be represented multiple times during its 3-month validity, creating new causes of action. As both judgments are from division benches, the clarity is not definitive, but the latest judgment aligns better with the Act’s nature and should be followed for now.

What happens if two notices are sent during the notice period under Section 138?

In N. Parameswaran Unni v. G Kannan (2017), it was ruled that sending two notices during the notice period of 30 days will not invalidate the proceedings, and the second notice will be considered a reminder without affecting the prescribed periods.

Conclusion

Chapter XVII of the Negotiable Instrument Act, of 1881 has improved cheque credibility, but its effectiveness relies on implementation. Major contentions include high case pendency, addressed by forming fast-track courts (In Re: Expeditious Trial of Cases Under Section 139 of the Negotiable Instrument Act, 2022). There’s debate over giving a criminal overtone to civil disputes, but abolishing it won’t hasten the process due to existing remedies under Order XXXVII of the Code of Civil Procedure, 1908. Regarding imprisonment under Section 138, clear guidelines for special circumstances can be devised. Adding a pecuniary limit and freezing drawers’ accounts like in Scotland and Japan may help. Decriminalization may encourage fraud, impacting the economy.

We are a law firm in the name and style of Law Offices of Kr. Vivek Tanwar Advocate and Associates at Gurugram and Rewari. We are providing litigation support services for matters related to the Negotiable Instrument Act, of 1881.

4 Replies to “Section 138 of the Negotiable Instruments Act: An Overview of Dishonored Cheques and its Implications”

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    References:

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    Sadly, it could possibly also enhance sebum production in the
    pores and skin, leading to Zits Vulgaris one thing that many bodybuilders
    have to think about when selecting a steroid. By permitting athletes to go harder for longer, Trenbolone can unlock maximum performance
    potential during sports activities competitions and grueling health
    club workouts. If you’ve ever spent weeks toiling away in the gym, day after day, and seen little to no return in your efforts, it’s understandable
    why sluggish gainers could turn into pissed off. It additionally increases your energy and endurance,
    allowing you to push your workouts to the following degree.
    The risks concerned in taking extremely excessive doses of Tren (over one thousand mg) shouldn’t be ignored, and so it
    could be very important keep inside beneficial limits.

    The Trenbolone chopping cycle includes using trenbolone together with other steroids similar to Winstrol and Anavar.
    For these causes, it is important to seek the guidance of with a physician before utilizing trenbolone or some other anabolic steroid.
    A quick scroll by way of socials and you’ll discover as
    much content material concerning the harmful side effects of Tren as
    there are about the advantages.
    And these gains come on very quick as a result of Trenbolone Acetate is
    a quick-acting steroid. You won’t hear so much concerning the cardiovascular side effects of Trenbolone, however they
    certainly exist. What we largely imply by these unwanted side effects is that they impact
    cholesterol and blood strain. Fortunately, this specific
    aspect impact is definitely prevented as a end result
    of it comes about because of your Tren dose being too high and not sufficient
    exogenous testosterone being provided to meet your wants.

    References:

    someone who takes steroids Is risking Which of the following outcomes?
    (https://hubpages.com/)

  3. In this case, another steroid could also be more effective than trenbolone, not when it comes to efficiency but as a result of sleep is significant for optimum physique composition. However,
    we now have had some patients report roughly 80% of their hair loss reversing again post-cycle,
    after dihydrotestosterone levels regulate back to normal.
    After a tren cycle, we usually see low testosterone
    levels inflicting lethargy and diminished sexual
    operate, as properly as despair.
    Thus, for these wanting to maintain their hair as thick and
    full as possible, it may be wise to keep away from trenbolone, as an alternative opting for less androgenic steroids corresponding to Dianabol or Deca Durabolin. In our experience, these two
    anabolic steroids do not trigger dihydrotestosterone ranges
    to rise to excessively high levels. We have found that
    isotretinoin, higher known as Accutane, might help bodybuilders that
    suffer from pimples however want to expertise the benefits of trenbolone (or other androgenic steroids).
    We have discovered that when an individual can’t sleep despite altering their food
    regimen, taking supplements, and varied different means to relax, their body can turn into extra catabolic as
    a outcome of an increase in cortisol. This can exacerbate tren’s unwanted effects, additional rising
    blood stress and somewhat inhibiting fats loss and muscle
    progress.
    Nevertheless, when there’s an extra of this viscous fluid, it can block the pores, resulting in cystic pimples in very sensitive users.
    In this instance, we’ve discovered that cabergoline, a dopaminergic that’s medically
    used to treat hyperprolactinemia (high ranges of
    prolactin), helps to revive optimal sexual function.
    This powerful aura might be observed by everybody round them, and not
    only will confidence improve on a social stage
    but in addition on a primal degree. We have come to understand
    that each aggressive powerlifter shall be operating
    trenbolone of their stack before a meet.
    Tren cough could be described as a dry cough that happens
    when injecting trenbolone, lasting for several seconds. Trenbolone is a potent fats
    burner as a outcome of it being highly androgenic, with the
    AR (androgen receptor) stimulating lipolysis in adipose tissue.
    Nevertheless, beneath are 17 results that we have found consistent
    in trenbolone customers at our clinic. Firstly, it could be very important perceive
    that every particular person will reply in one other way to trenbolone based mostly on their genetic code, making
    them more or less susceptible to certain unwanted facet effects.

    Dr. O’Connor has over 20 years of expertise treating women and
    men with a historical past of anabolic steroid, SARM, and PED use.

    For example, if a newbie utilizes low doses of trenbolone,
    their outcomes when it comes to muscle hypertrophy will be remarkable (gaining approximately 30 pounds of lean muscle).
    One man can turn out to be hypertensive underneath our care after a couple
    of cycles, whereas another man’s blood strain can remain within the normal vary.
    This trio of medicines has proven to be a fantastic success at our clinic and in medical trials for restoring the hypothalamic-pituitary-testicular axis (HPTA) from anabolic
    steroids. Seemingly, it is increasingly difficult to remain calm
    with an elevated coronary heart rate and high levels of adrenaline.
    Nevertheless, the adverse impact of high adrenaline ranges is elevated sweating
    out and in of the fitness center. Nonetheless, those who goal to maintain their hairline through common tren cycles will encounter important challenges.

    We have discovered that respiratory misery also can occur
    when injecting different steroids, such as testosterone cypionate.

    This occurs as a outcome of a rise in blood strain,
    indicating decreased blood flow to the heart; thus, deeper breaths are wanted
    to increase oxygen supply. It is not uncommon for customers to expertise shortness of breath
    when strolling up the steps or doing gentle train on tren. Trenbolone’s
    effects on strength are actually distinctive, especially as it does not aromatize and cause water retention. Nevertheless, others argue that tren’s antagonistic effects are exaggerated and never notably
    worse than those of different anabolics. Moreover, nearly each trenbolone product is completely different based on the UGL (underground lab) manufacturer and
    their skill at formulating a pure product. You can’t definitively
    know what to expect from tren until you inject it, as folks have completely different experiences primarily based on their genetics.

    He has been a board-certified MD since 2005 and offers steering on harm discount methodologies.
    We see the negative unwanted aspect effects of tren occurring extra at larger
    dosages (over four hundred mg/week). When 19 steroid-induced hypogonadal men got Dr.
    Scally’s PCT protocol in a medical setting, 100 percent of them recovered
    their endogenous testosterone manufacturing
    inside forty five days. Due To This Fact, trenbolone could exacerbate mental
    health issues, and thus susceptible people ought to steer
    away from this steroid. Many people find trenbolone to be an emotional rollercoaster,
    causing temper swings every hour. However, for the rest of the
    physique, users can expect quicker and thicker hair development (3), which could be advantageous for males coveting
    more grandiose beards.
    One advantage of that is that the metabolism increases, serving
    to customers burn extra calories naturally
    throughout the day. Usually, we now have found trenbolone’s fat-burning results to be overpowered by its ability to pack on muscle; thus, most will make
    the most of trenbolone when making an attempt to gain lean mass.

    If a person is vulnerable to pimples vulgaris, trenbolone is more doubtless to trigger further breakouts as a outcome of its androgenic
    nature.
    Some of our patients come to the conclusion that trenbolone is not
    price it as a outcome of its harsh unwanted effects, being one
    of the most toxic steroids a person can take (physiologically and
    psychologically). Tren causes pimples due to androgens stimulating the sebaceous glands, inflicting increased
    sebum production, which is a waxy substance used to moisturize the pores and
    skin. With testosterone, androgen, and nitric
    oxide ranges surging, blood circulate will enhance to
    the penis, positively affecting dimension and erection high
    quality. We have found that one method to overcome insomnia is to eat ample amounts of steak, hen, or turkey earlier than bedtime, combined with giant portions of carbohydrates.
    These three forms of meat are rich in l-tryptophan, an amino acid that has sedative qualities, helping to
    assuage users’ central nervous methods.

    References:

    Long Term Steroid Use Side Effects (http://Www.Google.Ps)

  4. Anavar, we can’t name it an extremely highly effective anabolic steroid; nevertheless, we will call it tremendously beneficial.
    When we contemplate its usually well-tolerated nature, this
    takes it to a brand new level making it some of the
    worthwhile anabolic steroids of all time. The key to obtaining the most bang in your buck is
    understanding the Oxandrolone hormone, knowing what it may possibly do
    and implementing it into your plan for the proper function.
    This is why bodybuilders usually cycle clenbuterol for
    brief durations, with temporary protocols of 2 weeks on and a pair
    of weeks off. The following is a comprehensive listing of extra anabolic steroid cycles that simultaneously
    promote muscle hypertrophy and improve fat burning.
    Trenbolone considerably reduces fats mass while facilitating muscle progress.

    Though Anavar is called a mild oral steroid, it belongs to
    the 17α-alkylated steroid class, which is structurally
    modified to outlive liver metabolism. However,
    in distinction to most different 17α-alkylated anabolic steroids, Anavar shows little to no
    hepatotoxicity, even at larger doses (Horowitz, Archives of Internal Medicine).

    Still, it is clever to monitor liver enzymes during usage as a precaution.
    Therefore, one technique could be to have an AI ready if you
    start to notice swollen nipples. As quickly as our patients
    start to experience the early phases of gynecomastia, they start working letrozole on the dosages acknowledged
    above. This is undesirable information, contemplating blood pressure is
    already likely to be excessive throughout this cycle.

    For example, and as we’ve already touched upon earlier
    in this post oral steroids can result in larger liver injury.
    Sometimes you don’t realise until it’s too late
    – that is why you must get common testosterone checks and blood tests by your doctor to protect yourself from
    as many adverse penalties as possible. There are pro’s and con’s to both tablets and
    injections, make-sure to do your research, so you can also make a calculated choice.
    Some customers can expertise hair loss from a steroid cycle, then once the cycle has finished the hair comes back
    thicker and fuller. Nevertheless, in case you are taking excessive doses of Anavar or other steroids for excessive periods of time, hair loss can turn out to be permanent.
    If cycles are stored short and dosages stay modest, any hair thinning may be reversed post-cycle.
    Anavar is a very popular drug amongst gym-goers, as
    a outcome of it’s one of many most secure anabolic steroids and comes with minimal unwanted effects.

    If you’re looking to find the most effective brand of
    this steroid while considering affordability, this desk provides a comprehensive pricing comparability.
    We’ve included real manufacturers like
    Alpha Pharma to offer you an thought of the cost differences.
    Take a have a glance at the table under to make an informed choice when purchasing
    Oxandrolone. PCT ancillaries such as HCG can help keep the testes stimulated and
    producing pure testosterone.
    Nonetheless, in some circles Anavar is greatly underappreciated because
    of its mild nature, however that is generally as a result of unrealistic expectations.
    Many tend to assume all anabolic steroids should yield a set of specific results at a particular fee of energy, but
    reality tells us varying steroids carry varying
    outcomes and purposes. Anavar is without query an extremely helpful anabolic steroid,
    however to find a way to respect its advantages we must perceive it.
    You’ll get people injecting steroids because
    it’s perceived as more excessive and some people think that you
    get better outcomes – this isn’t all the time the case.
    On the flip aspect you get people who think tablets like Anavar are less invasive
    and cause much less harm.
    We commonly observe this type of chopping stack
    when bodybuilders are making ready for a contest, trying to cut
    back physique fat and preserve muscle tissue. We have found Winstrol to be the
    stronger of the 2 steroids, causing extra deleterious unwanted side effects.
    Thus, an Anavar and Winstrol cycle is commonly utilized
    by intermediate or advanced steroid customers, on the expense of
    doubtless elevated complications.
    If you’re looking for large positive aspects in lean muscle tissue in a comparatively brief time period, you may be
    disappointed on this steroid. Many are inclined to assume the purpose of anabolic steroid use is to promote giant positive aspects in muscle tissue,
    and if this doesn’t occur you’re supplementing for the incorrect causes or the wrong method.
    What many fail to understand is that features are not defined as
    mass features and nothing else, many complement for whole body transformations that gained’t embrace
    large buildups in mass.
    This is also why powerlifters typically administer Anavar previous to a
    contest for optimum power without significant weight achieve.
    Anavar is sometimes utilized by women due to its comparatively delicate androgenic effects.
    Nonetheless, the danger of virilization (development of
    male characteristics) exists, and careful monitoring and low doses are really helpful for female customers.

    Thus, ALT (alanine aminotransferase) and AST (aspartate aminotransferase) scores will rise reasonably.

    Anavar is the exception to this rule, as we have seen it cut back both
    subcutaneous and visceral fat mass in sufferers via
    the development of insulin sensitivity (2). One of the biggest concerns women ought to contemplate
    is where to purchase Anavar online. Since Anavar is against the law in plenty of
    nations there are many counterfeit versions of the real steroid.

    References:

    Testosterone Chemical Structure

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