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Section 138, Criminal Procedure Code, 1973, Section 210 - Complaint case and police case over same matter - Magistrate to stay complaint case and call for a report from police - Section 210 Cr.P.C. is not attracted where complaint is u/s 138 NI Act as cognizance of offence u/s 138 NI Act can only be taken on a complaint filed by payee. (Peter Mathew Vs Betty John) 2001(3) CIVIL COURT CASES 634 (Kerala)
Section 138, Criminal Procedure Code, 1973, Section 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.) = 2001(2) APEX COURT JOURNAL 602 (S.C.)
Section 138 - 'Pay Order' - Whether a cheque within the meaning of Section 138 of the Act? - Held, Yes. (Punjab & Sindh Bank Vs Vinkar Sahakari Bank Ltd. & Ors.) 2001(3) CIVIL COURT CASES 362 (S.C.) = 2001(2) APEX COURT JOURNAL 241 (S.C.)
Section 138 - Cheque dishonoured - Signatures on cheque incomplete - Proceedings quashed. (Vinod Tanna Vs Zaheer Siddiqui) 2002(1) APEX COURT JUDGMENTS 476 (S.C.) = 2002(1) CIVIL COURT CASES 571 (S.C.) = 2002(1) CRIMINAL COURT CASES 625 (S.C.)
Section 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) 2002(2) APEX COURT JUDGMENTS 481 (S.C.) = 2003(1) CIVIL COURT CASES 1 (S.C.) = 2003(1) CRIMINAL COURT CASES 90 (S.C.) : 2003 (1) ISJ (BANKING) 0492
Section 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)
Section 138 - Cheque issued as a security to make payment of the liability of another company - Even if the cheque is issued as security or in discharge of liability of any other person, it amounts to a liability which has been undertaken by the drawer of the cheque. (M/s Mahaplasto Ltd. Vs M/s Bushan Steels and Strips Ltd.) 2000(1) CIVIL COURT CASES 580 (P&H)
Section 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) 2002(2) APEX COURT JUDGMENTS 249 (S.C.) : 2002(3) CRIMINAL COURT CASES 411 (S.C.) : 2002(3) CIVIL COURT CASES 566 (S.C.)
Section 138 - Cheque issued by one person towards discharge of debt of another person - Complaint can be made against drawer of the cheque only - Proceedings against the petitioner who is not the drawer, quashed. (Gummadi Industries Ltd. Vs Khushroo F.Engineer) 2000(3) CIVIL COURT CASES 209 (Mad.)
Section 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) CIVIL COURT CASES 78 (P&H) = 2002(2) CRIMINAL COURT CASES 83 (P&H)
Section 138 - Components of offence under Section 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.)
Section 138 - Date of cheque - Corrected four times to extend its validity - Period of validity of cheque would commence from last corrected date and not when cheque was originally drawn. (Rengammal and Co. Vs K.Veluchamy) 2001(3) CIVIL COURT CASES 18 (Madras) : 2002 (2) ISJ (BANKING) 0343
Section 138 - Dishonour of cheque - Accused convicted - Accused subsequently paying entire amount to complainant - Accused given benefit of Section 360 Cr.P.C. and released on probation. (Criminal Procedure Code, 1973, Section 360) (Gian Chand Vs M/s Malwa Traders) 1995(2) CIVIL COURT CASES 257 (P&H) : 1995 (2) AIJ 0764 : 1995 (2) BANKING CASES 0167 : 1995 (4) CRIMES 0300
Section 138 - Dishonour of cheque - Main factors to maintain a complaint are: (i) The cheque in question should have been issued in discharge of whole or in part of a debt or liability; (ii) The cheque should be presented for payment within six months or its specific period, whichever is earlier; (iii) The payee or holder should give notice of demand within 15 days of received information of dishonour which may be due to insufficient funds or the amount payable exceeds the arrangement; (iv) The drawer gets 15 days time after receipt of the notice to make the payment and only if he fails to pay, he is liable to be prosecuted; (v) Complaint can be made only by payee or the holder in due course within one month of the arising of the cause of action. (M/s Credential Finance Ltd. Vs State of Maharashtra) 2000(3) CIVIL COURT CASES 458 (Bom.) : 1999 - 2001 (SUPP.) ISJ (BANKING) 0643
Section 138 - Market Committee - Previous sanction to maintain legal proceedings - Previous sanction contemplated by Section 84(4) of the Karnataka Agricultural Produce Marketing (Regulation) Act, 1966 is not applicable to the prosecution proceedings for an offence under Section 138 of the Negotiable Instruments Act - Complaint is maintainable. (Karnataka Agricultural Produce Marketing (Regulation) Act, 1966, Section 84(4).(Mevul Manilal Nagada Vs Rudrappa Kaibasappa Yaradoni & Anr.) 1999(2) APEX COURT JOURNAL 609 (S.C.)
Section 138 - Non presentation of cheque within six months - Absolves the person issuing the cheque of his criminal liability. (Shri Ishar Alloy Steels Ltd. Vs Jayaswals Neco Ltd.) 2001(3) CIVIL COURT CASES 238 (S.C.) : 2001(2) APEX COURT JOURNAL 270 (S.C.) : 2001 ISJ (BANKING) 0307
Section 138 - Offence is committed only on non payment within 15 days notice period - Court is barred from taking cognizance of complaint in respect of such an offence prior to expiry of 15 days within which drawer has to make payment - Time frame prescribed under Section 138 has to be strictly construed. (Rakesh Nemkumar Porwal Vs Narayan Dhondu Joglekar & another) 1993 (SUPPL.) CIVIL COURT CASES 1 (Bombay) : 1993 (SUPL.) CIVIL COURT CASES 0001 (BOMBAY) : 1993 ISJ (BANKING) 0251 : 1992 (2) BANKING CASES 0402 : 1995 (2) BANKING CASES 0386 : 1993 CC RULINGS 0511 : 1993 (78) COMP. CASES 0822 : 1993 (1) CRIMES 0268 : 1993 CRL. L.J. 0680 : 1994 (3) BCR 0355 : 1992 (3) CCR 2711 : 1993 (20) CRLT 0306 : 1993 MAHLJ 0630
Section 138 - Promissory note in favour of daughter who authorised father to collected the contents of the promissory note - Notice issued and thereafter accused issued cheques in the name of father for the amount claimed - Cheques bounced on presentation - Complaint - Contention that father is endorsee without consideration - But the endorsement is "to collect" and the same clothes the complainant with the authority to issue notice and realise the amount by filing civil suits and also criminal complaint - Cheques were issued in the name of father who became payee under the cheques - It cannot be said that complainant has no authority to file the complaint. (Ch.Nageshwara Rao Vs B.V.Subbaiah & Anr.) 2000(2) CIVIL COURT CASES 464 (A.P.) : 2001 ISJ (BANKING) 0068
Section 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) CIVIL COURT CASES 577 (S.C.) = 2004(1) CRIMINAL COURT CASES 693 (S.C.)
Section 138 - Sentence - Courts must take into consideration all aspects of the case including the financial loss caused to the payee or holder in due course of the cheque, the quantum of the amount involved in the cheque, status of the accused as well as of the complainant, time and costs consumed in the litigation etc. (B.Harikrishna Vs Macro Links Private Limited & Anr.) 2000(2) CIVIL COURT CASES 440 (Kant.) : 1999 - 2001 (SUPP.) ISJ (BANKING) 0718
Section 138 - Surety of debtor when issues a cheque - In that case also Section 138 will be attracted in case of dishonour. (Hiten Sagar Vs IMC Ltd.) 2001(3) CIVIL COURT CASES 571 (Bom.) : 2002 (1) ISJ (BANKING) 0244
Sections 138, 50 - "A holder in due course" - Means a person who for consideration became the possessor of a cheque if payable to bearer before the amount became payable - Unless contrary is proved the holder of a negotiable instrument shall be presumed to be a holder in due course. (Punjab & Sindh Bank Vs Vinkar Sahakari Bank Ltd.) 2001(3) CIVIL COURT CASES 362 (S.C.) = 2001(2) APEX COURT JOURNAL 241 (S.C.)
Sections 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)
Sections 138, 124, 5 to 7 - Pay order - Is not a cheque - Dishonour of pay order - Provision is not attracted. (Ramesh Deshpande Vs Punjab & Sind Bank) 2001(2) CIVIL COURT CASES 130 (Bom.) : 1999 - 2001 (SUPP.) ISJ (BANKING) 0762
Section 139 - 'Holder' - Not intended to cover all kinds of holders - It operates only in favour of payee and holder in due course. (B.Mohan Krishna Vs Union of India) 1995(1) CIVIL COURT CASES 480(A.P.)
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