Last Updated : 07.01.2007
Negotiable Instruments Act, 1881, S.138, Evidence Act, 1872, S.114 - Dishonour of cheque - Notice - Notice returned with endorsement that addressee did not claim the notice and the persons in occupation did not receive the intimation and not as "No such addressee" - Presumption that addressee resides at that address is proper. (Bhaskaran Nair Vs Abdul Kareem) 2007(1) Civil Court Cases 104 (Kerala)
Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Blank cheque - Cheque issued as security for transaction between the parties - When blank cheque is issued by one to another, it gives an authority to the person, to whom it is issued, to fill it up at the appropriate stage with the necessary entries regarding the liability and to present it to Bank - On dishonour of cheque accused is not absolved of the liability. (Moideen Vs Johny) 2007(1) Civil Court Cases 220 (Kerala)
Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Non appearance of accused due to illness - Process not issued - Single default not sufficient to dismiss the complaint in default when cause shown by complainant for absence is not disbelieved. (Manjit Kaur Vs State of Punjab & Anr.) 2007(1) Civil Court Cases 260 (P&H)
Negotiable Instruments Act, 1881, Section 138, Companies Act, Section 446 - Dishonour of Cheque - Provision of Section 446 of Companies Act has no application to the provisions of Section 138 of Negotiable Instruments Act - Section 138 of NI Act has overriding effect over section 446 of Companies Act - Order staying proceedings under section 138 because of Section 446 of Companies Act, quashed. (Gyan Chand Vs State of Rajasthan & Anr.) 2007(1) Criminal Court Cases 256 (Rajasthan)
Negotiable Instruments Act, 1881, Section 138, Criminal Procedure, Code, 1973, Section 482 - Dishonour of cheque - Company - Director - Cheque issued in 2003 whereas petitioner ceased to be Director of Company in 1994 - Certified copy of Form-32 issued by Registrar of Companies is a conclusive proof that petitioner resigned in 1994 - Petitioner was not Director at the material time - Proceedings against petitioner, quashed. (Dr.(Mrs.) Sarla Kumar Vs Srei International Finance Ltd.) 2007(1) Criminal Court Cases 071 (Delhi)
Negotiable Instruments Act, 1881, Section 138, Evidence Act, 1872, Section 47 - Dishonour of cheque - Expert opinion - Signature on cheque disputed - Court undertook exercise of naked comparison of signatures of accused on cheque with other admitted signatures and came to conclusion that signature on cheque does not appear to be signature of accused - Court should be assisted by experts opinion - Banker is more competent to say whether it is signature of accused or not with reference to specimen signatures - Issuance of cheque proved - Presumption arises u/s 139 of Act in favour of complainant - Acquittal not valid. (Rajendra Prasad Vs M.Shivaraj) 2007(1) Criminal Court Cases 220 (Karnataka)
Negotiable Instruments Act, 1881, Section 138 - Dishonour of cheque - Cause of action - Defective notice - Name of bank incorrectly mentioned - It is a defective notice - Cheque again presented and again dishonoured - Prosecution launched on the basis of dishonour of cheque for the second time - Held, cause of action begins to run not on the issuance of a defective notice but it started to run on issuance of notice on dishonour of cheque for the second time. (Aniyan Thomas Chacko Vs The Varvelil Bankers & Anr.) 2007(1) Criminal Court Cases 236 (Kerala)
Negotiable Instruments Act, 1881, Section 138 - Dishonour of cheque - Cheque issued as security for repayment of loan - Cheque will continue to be one issued for discharge of liability as contemplated under Section 138 of the Act. (Rathikumar Vs Santhamma) 2007(1) Civil Court Cases 024 (Kerala)
Negotiable Instruments Act, 1881, Section 138 - Dishonour of cheque - Issued as security - Even if cheque is issued as a security for payment, it is negotiable instrument and encashable security at the hands of payee - Not a ground to exonerate the penal liability u/s 138 of N.I. Act. (Umaswamy Vs K.N.Ramanath) 2007(1) Criminal Court Cases 106 (Karnataka)
Negotiable Instruments Act, 1881, Section 138 - Dishonour of cheque - Law does not mandate proof of original transaction or existence of original consideration - In a prosecution under Section 138 of the Act, Criminal Court is not to adjudicate on the liability to discharge with the cheque is alleged to be issued. (Johnson Scaria Vs State of Kerala) 2007(1) Criminal Court Cases 161 (Kerala)
Negotiable Instruments Act, 1881, Section 138 - Dishonour of cheque - Notice - Demand of payment not made in notice - Held, it is not a legal notice strictly in terms of Section 138(b) of the Act. (Haryana State Small Industries Vs Laxmi Agro Industries) 2007(1) Criminal Court Cases 269 (P&H) (DB)
Negotiable Instruments Act, 1881, Section 138 - Dishonour of cheque - Notice issued - Assurance given to present cheque again and that it will be honoured - Tendering of cheque for the second time will not frustrate the cause of action which arose on tendering the cheque for the second time. (Haryana State Small Industries Vs Laxmi Agro Industries) 2007(1) Criminal Court Cases 269 (P&H) (DB)
Negotiable Instruments Act, 1881, Section 138 - Dishonour of cheque - Notice issued but no complaint filed - Cheque can be presented for the second time and complaint filed on fresh cause of action in case : (i) Envelope addressed to the complainant is lost or damaged or destroyed in transit; (ii) the letter does not reach the respondent for want of correct address; (iii) the envelope so received by the respondent is short of notice and it is blank; (iv) the letter so posted is not received by the actual addressee and the postage is stolen in transit; and (v) As assured and promised by the respondent, the cheque has been tendered for the second time. (Haryana State Small Industries Vs Laxmi Agro Industries) 2007(1) Criminal Court Cases 269 (P&H) (DB)
Negotiable Instruments Act, 1881, Section 138 - Dishonour of cheque - Notice sent - Receipt of notice denied - On the other hand prayer made for dismissal of complaint on plea that complaint is barred by time in view of notice served by complainant - Held, these are inconsistent pleas and are self contradictory and an afterthought which is apparently carved out to resist the claim of complainant. (Haryana State Small Industries Vs Laxmi Agro Industries) 2007(1) Criminal Court Cases 269 (P&H) (DB)
Negotiable Instruments Act, 1881, Section 138 - Dishonour of cheque - Offence when committed - It is not giving of notice which makes offence - It is the receipt of notice by drawer which gives cause of action - Cause of action is complete when drawer fails to make payment within 15 days of receipt of notice - Offence is deemed to have been committed only from the date when notice period expires - Normally cause does not arise until the commission of offence. (Haryana State Small Industries Vs Laxmi Agro Industries) 2007(1) Criminal Court Cases 269 (P&H) (DB)
Negotiable Instruments Act, 1881, Section 138 - Dishonour of cheque - Signed blank cheque - Defence that a signed blank cheque was handed over by an account holder is inherently suspicious - Burden rests heavily on shoulders of account holder to claim absolution from culpable liability. (Bhaskaran Nair Vs Abdul Kareem) 2007(1) Civil Court Cases 104 (Kerala)
Negotiable Instruments Act, 1881, Section 139, Evidence Act, 1872, Section 105 - Dishonour of cheque - Presumption under Section 139 of the Act - Rebuttal - Discharge of burden - To lead evidence is not necessary to discharge the burden - Accused can rely on the broad improbabilities in the case of the prosecution, the improbabilities in the evidence of the witnesses of the prosecution, the acceptability of suggestions made to the prosecution witnesses in the course of cross examination as also defence evidence if any - All circumstances which he as an accused could have relied on to discharge his burden under S.105 of the Evidence Act can be made use of by him to discharge the burden under S.139 of the N.I. Act also. (Johnson Scaria Vs State of Kerala) 2007(1) Criminal Court Cases 161 (Kerala)
Negotiable Instruments Act, 1881, Section 139 - Dishonour of cheque - Presumption - Available only till contrary is proved by the accused - A fact is said to be proved when the court on a consideration of the matters before it believes in its existence or considers its existence so probable that a prudent man ought to proceed under the circumstances of the particular case on the supposition that such fact exists. (Johnson Scaria Vs State of Kerala) 2007(1) Criminal Court Cases 161 (Kerala)
Negotiable Instruments Act, 1881, Section 139 - Dishonour of cheque - Presumption - Rebuttal - Theory of handing over a blank signed cheque as security - Burden rests squarely and heavily on the indictee who wants to attribute to himself such an improbable and artificial conduct to claim exculpation from lability - The silence and inaction of accused on receipt of demand notice and his omission to raise the contentions now raised are vital and crucial significance when a court tries to evaluate the acceptability of the contention adopting the yardstick of a prudent man. (Aniyan Thomas Chacko Vs The Varvelil Bankers & Anr.) 2007(1) Criminal Court Cases 236 (Kerala)
Negotiable Instruments Act, 1881, Section 139 - Dishonour of cheque - To draw presumption under Section 139 of the act complainant has to prove execution and issue of cheque - Admission of signature in a cheque goes a long way to prove due execution - Possession of the cheque by the complainant similarly goes a long way to prove issue of the cheque. (Johnson Scaria Vs State of Kerala) 2007(1) Criminal Court Cases 161 (Kerala)
Negotiable Instruments Act, 1881, Sections 138, 141, Criminal Procedure Code, 1973, Section 482 - Dishonour of cheque - Company - It is necessary to specifically aver in complaint that at the time offence was committed, the person accused was in-charge of and responsible for conduct of business of company - Without such an averment in complaint the requirement of Section 141 cannot be said to be satisfied - No such averment in complaint - Complaint qua petitioner quashed. (Hazi Abadullah & Ors. Vs State of Rajasthan & Anr.) 2007(1) Criminal Court Cases 393 (Rajasthan)
Negotiable Instruments Act, 1881, Sections 138 and 141, Criminal Procedure Code, 1973, Section 482 - Dishonour of cheque - Company - Director - Quashing of proceedings - Quashing sought on ground that disputed cheques were signed by non-petitioner No.3 on behalf of company and not by petitioner - Liability arises on account of conduct, act or omission on part of a person and not merely on account of holding an office or a position in a company - Absence of any specific material on record for fastening liability under S.141 of N.I. Act - Order taking cognizance qua petitioner could not be sustained only on ground that petitioner was director of company - Impugned order passed by trial Court, quashed. (Sunil Kumar Vs Nahata Fabrics) 2007(1) Criminal Court Cases 124 (Rajasthan)
Negotiable Instruments Act, 1881, Sections 138 and 141 - Dishonour of Cheque - Company - Complaint against company and its Directors - Specific averment has to be made in complaint that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company - This averment is an essential requirement of Section 141 of the Act - Without this averment in complaint, requirement of Section 141 cannot be said to be satisfied. (Luxmi Devi Vs Puran Chand) 2007(1) Criminal Court Cases 033 (P&H)
Negotiable Instruments Act, 1881, Sections 138 and 141 - Dishonour of cheque - Company - Director - In order to bring a case within Section 141 of the Act, complaint must disclose necessary facts which make a person liable. (Sunil Kumar Vs Nahata Fabrics) 2007(1) Criminal Court Cases 124 (Rajasthan)
Negotiable Instruments Act, 1881, Sections 138 and 141 - Dishonour of Cheque - Complaint against firm and its five partners - Averment in complaint that all the partners were incharge and responsible persons of the firm - No ground made out to quash the proceedings. (Luxmi Devi Vs Puran Chand) 2007(1) Criminal Court Cases 033 (P&H)
Negotiable Instruments Act, 1881, Sections 138 and 141 - Dishonour of cheque - Partnership firm - Sleeping partner - Not liable - Mere fact that a partner has financial stake in the business of the firm is not sufficient in itself to attract culpable liability under Section 141(1) of the Act - To attract culpable liability a partner must be in charge of and responsible to the firm to the conduct of its business. (K.K.Mohandas Vs M/s Jayasamudri Trading Co. & Anr.) 2007(1) Criminal Court Cases 300 (Kerala)
Negotiable Instruments Act, 1881, Sections 142, 138 - Dishonour of cheque - Condonation of delay - An application or affidavit in support of application for condonation of delay is not necessary - Sufficient cause can be shown in the complaint itself or in the application for condonation of delay or in the affidavit, if any, or in other materials which would be sufficient to satisfy the Court that the complainant had sufficient cause for not filing the complaint within the specified period. (Abdurehiman Vs Sethu Madhavan) 2007(1) Civil Court Cases 240 (Kerala) (DB)
Negotiable Instruments Act, 1881, Sections 142, 138 - Dishonour of cheque - Condonation of delay - If there is a delay in filing complaint Court should give notice to the respondent and after hearing the respondent Court should satisfy itself as to whether complainant had sufficient cause for not making the complaint within the specified period - A detailed inquiry giving opportunity to the parties to adduce oral evidence is not necessary at the stage of taking cognizance to decide whether delay deserves to be condoned under Section 142 of the Act. (Abdurehiman Vs Sethu Madhavan) 2007(1) Civil Court Cases 240 (Kerala) (DB)
Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.256(1) - Dishonour of cheque - Dismissal of complaint in default - Magistrate before dismissing the complaint in default should record reasons as to why he does not deem it proper to adjourn the hearing - When no such reasons are forthcoming, complaint ordered to be restored. (Manjit Kaur Vs State of Punjab & Anr.) 2007(1) Civil Court Cases 260 (P&H)
Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.401 - Dishonour of cheque - Revision - Every error is not justification for invoking revisional powers - Unless the alleged infraction of procedure resulted in miscarriage of justice, revisional jurisdiction cannot be invoked. (Bhaskaran Nair Vs Abdul Kareem) 2007(1) Civil Court Cases 104 (Kerala)
Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, S.438 - Transitory bail - Jurisdiction - Dishonour of cheque - Accused living at Chandigarh - Case pending before Court at Jaipur - Punjab and Haryana High Court granted transitory bail for 21 days - Punjab and Haryana High Court can grant anticipatory bail for transitory period. (Gurmit Kaur Vs U.T. Chandigarh) 2007(1) Civil Court Cases 067 (P&H)
Negotiable Instruments Act, 1881, S.138, Criminal Procedure Code, 1973, Ss.205 and 251 - Dishonour of cheque - Exemption from personnel appearance - Petitioner, a household lady, having two school going children - Petitioner has to also look after her old mother-in-law besides two school going children - Occurrence 5 years old - Exemption from personal appearance granted. (Anita Nanda Vs State of Punjab & Anr.) 2007(1) Civil Court Cases 151 (P&H)