138 authorities

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#1: KERALA HIGH COURT

Negotiable Instruments Act, 1881, Section 138-- - Dishonour of cheque - Jurisdiction - Presentation of cheque to the Bank - Whether it is the drawee bank or the collecting bank? - Held, 'the bank' is the drawee bank and not the collecting bank - Jurisdiction lies in a Court not at the place where cheque is presented for collection but at the place of drawee bank -

Complainant cannot confer jurisdiction on any Court by merely choosing to entrust the cheque for collection to a bank of his choice. (M.S.Santhoshkumar Vs K.G.Mohanan), 2008(4) CIVIL COURT CASES 097 (KERALA) : 2008(4) CRIMINAL COURT CASES 284 (KERALA)

#2: SUPREME COURT OF INDIA

Negotiable Instruments Act, 1881, Section 138-- - Dishonour of cheque - Notice -

Presumption of service of notice - Presumption arises when notice is sent by registered post - Even when a notice is received back with an endorsement that the party has refused to accept, still then a presumption can be raised as regards the valid service of notice. (Subodh S.Salaskar Vs Jayprakash M.Shah & Anr.), 2008(4) CIVIL COURT CASES 011 (S.C.) : 2008(4) CRIMINAL

COURT CASES 076 (S.C.) : AIR 2008 SC 3086 #3: SUPREME COURT OF INDIA

Negotiable Instruments Act, 1881, Section 138, 142-- - Dishonour of cheque - Complaint - Delay - Condonation - Insertion of proviso to S.142(b) in 2002 confers a jurisdiction upon the Court to condone the delay - However, insertion of the proviso is not retrospective in nature. (Subodh S.Salaskar Vs Jayprakash M.Shah & Anr.), 2008(4) CIVIL COURT CASES 011 (S.C.) : 2008(4) CRIMINAL COURT CASES 076 (S.C.) : AIR 2008 SC 3086

Negotiable Instruments Act, 1881, Section 138-- - Dishonour of cheque - Complaint - Amendment - Court has no jurisdiction to allow the amendment of the complaint petition at a later stage. (Subodh S.Salaskar Vs Jayprakash M.Shah & Anr.), 2008(4) CIVIL COURT CASES 011 (S.C.) : 2008(4) CRIMINAL COURT CASES 076 (S.C.) : AIR 2008 SC 3086

Negotiable Instruments Act, 1881, Section 138-- - Dishonour of cheque - Necessary

ingredients of the offence are : (1) a cheque was issued; (ii) the same was presented; (iii) it was dishonoured; (iv) a notice was served on the person sought to be made liable and; (v) despite service of notice, neither any payment was made nor other obligations, if any, were complied with within fifteen days from the date of receipt of notice. (Subodh S.Salaskar Vs Jayprakash M.Shah & Anr.), 2008(4) CIVIL COURT CASES 011 (S.C.) : 2008(4) CRIMINAL COURT CASES 076 (S.C.) : AIR 2008 SC 3086

Negotiable Instruments Act, 1881, Section 138-- - Dishonour of cheque - Notice - Service of notice - Thirty days time ordinarily must be held to be sufficient for service of notice. (Subodh S.Salaskar Vs Jayprakash M.Shah & Anr.), 2008(4) CIVIL COURT CASES 011 (S.C.) : 2008(4)

CRIMINAL COURT CASES 076 (S.C.) : AIR 2008 SC 3086 #7: SUPREME COURT OF INDIA

Negotiable Instruments Act, 1881, Section 138-- - Dishonour of cheque - Notice - Sent by registered post with acknowledgment due to a correct address - Service of notice has to be presumed. (M/s.Indo Automobiles Vs M/s.Jai Durga Enterprises & Ors.), 2008(4) CIVIL COURT CASES 027 (S.C.)

Negotiable Instruments Act, 1881, Section 138-- - Dishonour of cheque - Notice - Sent by registered post to correct address of the drawer - Notice returned with endorsement must be presumed to be served to the drawer and the burden to show that the drawee had managed to get an incorrect postal endorsement letter on the complainant and affixed thereof have to be considered during trial on the background facts of the case. (M/s.Indo Automobiles Vs M/s.Jai Durga Enterprises & Ors.), 2008(4) CIVIL COURT CASES 027 (S.C.)

Negotiable Instruments Act, 1881, Section 138, 141-- - Dishonour of cheque - Company - Directors - An allegation in the complaint that the named accused are Directors of the company itself would usher in the element of their acting for and on behalf of the company and of their being in charge of the company. (Malwa Cotton & Spinning Mills Ltd. Vs Virsa Singh Sidhu & Ors.), 2008(3) APEX COURT JUDGMENTS 065 (S.C.) : 2008(4) CIVIL COURT CASES 056 (S.C.) : AIR 2008 SC 3273

Negotiable Instruments Act, 1881, Section 138, 141-- - Dishonour of cheque - Company - Director - A person in the commercial world having a transaction with a company is entitled to presume that the Directors of the company are in charge of the affairs of the company - If any restrictions on their powers are placed by the memorandum or articles of the company, it is for the Directors to establish it at the trial. (Malwa Cotton & Spinning Mills Ltd. Vs Virsa Singh Sidhu

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& Ors.), 2008(3) APEX COURT JUDGMENTS 065 (S.C.) : 2008(4) CIVIL COURT CASES 056 (S.C.) : AIR 2008 SC 3273

Negotiable Instruments Act, 1881, Section 138, 141-- - Dishonour of cheque - Company - Directors - Resigned before cheques were issued - However, From No.32 was filed with the Registrar of Companies much after the cheques were issued - Held, the effect of delayed

presentation before the Registrar of companies can only be decided after parties lead evidence - Order quashing proceedings set aside. (Malwa Cotton & Spinning Mills Ltd. Vs Virsa Singh Sidhu & Ors.), 2008(3) APEX COURT JUDGMENTS 065 (S.C.) : 2008(4) CIVIL COURT CASES 056 (S.C.) : AIR 2008 SC 3273

Negotiable Instruments Act, 1881, Section 138-- - Dishonour of cheque - Post dated

cheque - To constitute offence u/s 420 IPC fraudulent or dishonest inducement on the part of the accused must be at the inception and not at a subsequent stage - When the post dated cheques were issued the accounts were operative - Even assuming that the account was closed

subsequently the same would not mean the appellant had an intention to cheat when the post dated cheques were issued. (Subodh S.Salaskar Vs Jayprakash M.Shah & Anr.), 2008(4) CIVIL COURT CASES 011 (S.C.) : 2008(4) CRIMINAL COURT CASES 076 (S.C.) : AIR 2008 SC 3086 #13: BOMBAY HIGH COURT

Negotiable Instruments Act, 1881, Section 138, 139-- - Dishonour of cheque -

Presumption - Rebuttal - The rebuttal would not have to be conclusively established - However, evidence must be adduced in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable - Standard of reasonability is that of a prudent man. (M/s.Coldspot Vs M/s.Naik Hotels & Ors.), 2008(4) CIVIL COURT CASES 070 (BOMBAY)

Negotiable Instruments Act, 1881, Section 138-- - Dishonour of cheque - Compensation - Awarded and paid - A duty is cast upon civil courts to take into account the sum paid or

recovered as compensation - Superior Courts can take into consideration such payments received even after passing of decree by trial Court. (D.Purushotama Reddy & Anr. Vs K.Sateesh), 2008(3) APEX COURT JUDGMENTS 528 (S.C.) : 2008(4) CIVIL COURT CASES 287 (S.C.) : 2008(4) CRIMINAL COURT CASES 383 (S.C.) : AIR 2008 SC 3202

#15: PUNJAB & HARYANA HIGH COURT

Negotiable Instruments Act, 1881, Section 138-- - Dishonour of cheque - Fine - Twice the amount of cheque - Court is competent to award sentence of fine equivalent to double the amount of cheque - Provision of S.29 Cr.P.C. which limits the amount of fine to Rs.5, 000/- is not applicable u/s 138 of Negotiable Instruments Act. (Sandeep Mittal Vs Pardeep Bhalla), 2008(4) CIVIL COURT CASES 116 (P&H)

#16: KARNATAKA HIGH COURT

Negotiable Instruments Act, 1881, Section 138, 142(b)-- - Dishonour of cheque -

Complaint - Delay - Condonation - 13 days delay - Supported by an affidavit - Court should take a reasonable view in condoning the delay - Delay can be condoned in the interest of justice having regard to the nature of transaction and the amount involved and also having regard to the difficulties expressed - Delay condoned. (P.S.Aithala Vs Ganapathy N.Hegde), 2008(4) CIVIL COURT CASES 130 (KARNATAKA)

Negotiable Instruments Act, 1881, Section 138-- - Dishonour of cheque - Complaint - Amendment - Amendment sought with regard to date of presentation of cheque with the Bank as well as memo of dishonour of cheque by the Banker of the accused - Held, complaint was defective and this was not a mere technical defect - Such a defect goes to the root of the matter which cannot be allowed to be amended. (V.K.Gupta Vs Manjit Kaur), 2008(4) CIVIL COURT

CASES 139 (P&H)

#18: ALLAHABAD HIGH COURT

Negotiable Instruments Act, 1881, Section 138-- - Dishonour of cheque - Complaint signed by power of attorney holder and not by payee - Power of attorney holder cannot be said to be either the payee or the holder in due course - Summoning order set aside. (Amit Yadav Vs State of U.P. & Anr.), 2008(3) CRIMINAL COURT CASES 902 (ALLAHABAD) : 2008(4) CIVIL COURT CASES 163 (ALLAHABAD)

Negotiable Instruments Act, 1881, Section 138, 142(b)-- - Dishonour of cheque -

Complaint signed by power of attorney holder - Power of attorney holder is not payee or holder in due course - Summoning order set aside - Complaint remitted back - Trial Court to summon the payee and thereafter to pass appropriate orders after examining the payee u/s 200 Cr.P.C. - Since the complaint was filed by power of attorney under improper legal advice as such

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Magistrate to consider this aspect for extending the time for filing the complaint. (Amit Yadav Vs State of U.P. & Anr.), 2008(3) CRIMINAL COURT CASES 902 (ALLAHABAD) : 2008(4) CIVIL COURT CASES 163 (ALLAHABAD)

Negotiable Instruments Act, 1881, Section 138-- - Dishonour of cheque - Notice - Plea that date of service of notice not mentioned in complaint - Notice sent by registered post - There is presumption of delivery of letter, properly addressed and sent by registered post unless

contrary is proved - Held, there is no force in the contention of accused. (Amit Yadav Vs State of U.P. & Anr.), 2008(3) CRIMINAL COURT CASES 902 (ALLAHABAD) : 2008(4) CIVIL COURT CASES 163 (ALLAHABAD)

#21: DELHI HIGH COURT

Negotiable Instruments Act, 1881, Section 138, 141-- - Dishonour of cheque - Company - Prosecution of Company, Chairman and Vice-President - Petition by Vice-President for quashing of proceedings - Specific plea in complaint that Vice-President negotiated with the complainant in respect of the transaction and held out assurances that liability would be cleared - It will be decided during trial if Vice-President has acted on behalf of company i.e. accused No.1 or not - Petition to quash proceedings dismissed. (Devender Raina Vs State & Anr.), 2008(4) CIVIL COURT CASES 181 (DELHI)

#22: CALCUTTA HIGH COURT

Negotiable Instruments Act, 1881, Section 138-- - Dishonour of cheque - Accused convicted and sentenced to three months imprisonment and to pay compensation of Rs.50, 000/- - Revision against - Cheque amount Rs.35, 300/- - Accused agreeable to pay the compensation double the amount of cheque immediately - Accused to pay Rs.70, 000/- as compensation to complainant and to suffer imprisonment till rising of Court. (Biswanath Singhania Vs Kumud Ranjan Sinha), 2008(4) CIVIL COURT CASES 188 (CALCUTTA) : 2008(4) CRIMINAL COURT CASES 118 (CALCUTTA)

Compromise after conviction - Order of conviction and sentence set aside. (Harjeet Singh & Anr. Vs Amarjit Singh), 2008(4) CIVIL COURT CASES 207 (P&H)

Compromise after conviction - Table appended to S.320 Cr.P.C. is not attracted to offences under Negotiable Instruments Act - Conviction and sentence set aside. (Harjeet Singh & Anr. Vs

Amarjit Singh), 2008(4) CIVIL COURT CASES 207 (P&H) #25: PUNJAB & HARYANA HIGH COURT

Negotiable Instruments Act, 1881, Section 138-- - Dishonour of cheque - Dismissal of complaint in default - Held, it would be too harsh on the petitioner to non suit him merely for his non appearance on one date - Non appearance not intentional - Complaint restored.

(Purushotam Mantri Vs Vinod Tandon alias Hari Nath Tandon), 2008(4) CIVIL COURT CASES 064 (P&H)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Cheque issued to

discharge liability of another person - Cheque dishonoured - Offence u/s 138 of the act is made out. (Avtar Singh Vs Canara Bank), 2008(4) CIVIL COURT CASES 435 (P&H)

Negotiable Instruments Act, 1881, 138, 142-- - Dishonour of cheque - Notice - Two notices served - Complaint silent as to first notice - Accused to raise this issue at the time of framing of charge. (M/s.Rishabh Nath & Ors. Vs State of U.P.), 2008(4) CIVIL COURT CASES 335

(ALLAHABAD)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - 'Account closed' - Successive presentation - Makes no sense - Whenever cheque is dishonoured on ground of account closed, payee cannot resort to successive presentation to save the limitation. (Nanjundappa Vs Hanumantharayappa), 2008(4) CIVIL COURT CASES 375 (KERALA) #4: KERALA HIGH COURT

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Signatures does not tally with the specimen - Successive presentation - Makes no sense - Whenever cheque is

dishonoured on ground of 'signatures does not tally with the specimen', payee cannot resort to successive presentation to save the limitation. (Nanjundappa Vs Hanumantharayappa), 2008(4) CIVIL COURT CASES 375 (KERALA)

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Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Partnership firm - Complainant can choose to file the complaint only against the firm - A firm cannot possibly contend that although it has been named as an accused it need not participate in the proceedings only because the person incharge of the affairs of the company at the time of commission of the offence has not been named as an accused. (Alfa Graphics Vs Arjun Kohli), 2008(4) CIVIL COURT CASES 391 (DELHI)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Mere reference in the complaint to 20 cheques as having been dishonoured cannot render the complaint bad in law or not maintianble. (Alfa Graphics Vs Arjun Kohli), 2008(4) CIVIL COURT CASES 391 (DELHI)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Partnership firm -

Complainant can choose to file a complaint only against the firm - Complainant may choose not to proceed against the individual partners as accused either because he is not aware as to who are the partners or is not interested in proceeding against the partners apart from the firm. (Alfa Graphics Vs Arjun Kohli), 2008(4) CIVIL COURT CASES 391 (DELHI)

#8: MADRAS HIGH COURT

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Reduction in sentence - Cheque amount of Rs.21 lakhs - Accused convicted and sentenced to 2 years RI and to pay compensation of Rs.42 lakhs - Accused 77 years old and having health problem - Compensation reduced to Rs.21 lakhs and sentence reduced till rising of Court. (R.Sridher Vs T.K.Rajendra Sha), 2008(4) CIVIL COURT CASES 400 (MADRAS)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Notice - Sent through courier - Notice received back with endorsement of `Refusal' - There is presumption of service. (R.Sridher Vs T.K.Rajendra Sha), 2008(4) CIVIL COURT CASES 400 (MADRAS)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Complaint - Quashing of - Accused summoned - Some evidence recorded - Quashing of complaint sought at that stage - Held, appreciation of evidence does not fall within the domain of proceedings u/s 482 Cr.PC. for quashing of the complaint. (M/s.Atma Tube Products Ltd. Vs The Tata Steel Ltd.), 2008(4) CIVIL COURT CASES 422 (P&H)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Complaint - Quashing of - Delay - Accused summoned and thereafter some evidence recorded - Held, once the evidence is already recorded in the complaint then it is not a fit case for quashing the complaint. (M/s.Atma Tube Products Ltd. Vs The Tata Steel Ltd.), 2008(4) CIVIL COURT CASES 422 (P&H)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - A civil suit for recovery of money as well as a complaint u/s 138 of the Act is maintainable. (D.Purushotama Reddy & Anr. Vs K.Sateesh), 2008(3) APEX COURT JUDGMENTS 528 (S.C.) : 2008(4) CIVIL COURT CASES 287 (S.C.) : 2008(4) CRIMINAL COURT CASES 383 (S.C.) : AIR 2008 SC 3202

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Self drawn cheque - Given to complainant in discharge of legal liability - Self drawn cheque comes within the expression 'Holder in due course' - Accused is guilty of offence u/s 138 of the Act. (Avtar Singh Vs Canara Bank), 2008(4) CIVIL COURT CASES 435 (P&H)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Defence - Failure on the part of the accused to establish his case does not automatically be a ground to hold that the prosecution has proved its case - U/s 101 Evidence Act the burden is on the prosecution to prove its case and such burden is not discharged by showing that the accused's case is improbable or false. (Jose Vs P.C.Joy), 2008(4) CIVIL COURT CASES 589 (KERALA)

Negotiable Instruments Act, 1881, 138, 141-- - Dishonour of cheque - Partnership firm - Consisting of two partners - Cheque signed by both the partners - Complaint against firm and both the partners - No pleading in complaint that at the time the offence was committed both the partners were incharge and responsible to the firm for the conduct of business of the firm - Held, when complaint is in relation to a firm of which there are only two partners, it is sufficient when it is pleaded that the firm has two partners who are also arrayed as accused persons. (Green Sea Marine & Ors. Vs V.A.Anty & Anr.), 2008(4) CIVIL COURT CASES 460 (KERALA) #16: KERALA HIGH COURT

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Negotiable Instruments Act, 1881, 138, 141-- - Dishonour of cheque - Partnership firm - Pleading as to requirement of S.141 of the Act - Held, complaint has to be read as a whole - If the substance of the allegations made in the complaint fulfills the requirements of S.141 of the Act then complaint has to proceed and is required to be tried with - In construing a complaint, a hypertechnical approach is not to be adopted. (Green Sea Marine & Ors. Vs V.A.Anty & Anr.), 2008(4) CIVIL COURT CASES 460 (KERALA)

#17: BOMBAY HIGH COURT

Negotiable Instruments Act, 1881, 138, 139-- - Dishonour of cheque - Legally enforceable debt - Presumption - Rebuttal - Not necessary for accused to produce evidence - Accused can discharge the onus placed on him even on the basis of material brought on record by the complainant. (Rajendraprasad Gangabishen Porwal Vs Santoshkumar Parasmal Saklecha & Anr.), 2008(4) CIVIL COURT CASES 474 (BOMBAY)

Negotiable Instruments Act, 1881, 138, 139-- - Dishonour of cheque - Legally enforceable debt - Presumption - Rebuttal - Loan of Rs.25 lacs - Complainant himself was in debt - No evidence produced to prove financial viability of complainant to raise such huge amount -

Conviction of accused merely because he admitted his signature on disputed cheque not proper - It does not relieve complainant from proving pre-existing debt or legal liability to pay amount shown in cheque. (Rajendraprasad Gangabishen Porwal Vs Santoshkumar Parasmal Saklecha & Anr.), 2008(4) CIVIL COURT CASES 474 (BOMBAY)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Cheque issued by way of security - Plea that dishonour of such cheque does not attract criminal liability - There was interpolation in amount written in numbers - Fact of interpolation corroborated by expert

evidence - Conviction without considering legal plea and without giving satisfactory reasons for disbelieving fact of interpolation - Set aside - Matter remanded for decision afresh. (Sudhir Kumar Bhalla Vs Jagdish Chand & etc. etc.), 2008(4) CIVIL COURT CASES 496 (S.C.)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - (Smt.Shamshad Begum Vs B.Mohammed), 2008(4) CIVIL COURT CASES 567 (S.C.)

#21: HIMACHAL PRADESH HIGH COURT

Negotiable Instruments Act, 1881, 138, 141-- - Dishonour of cheque - Notice - Composite notice of more than one cheque is valid. (Subhash Sahni Vs M/s.Auro Spinning Mills), 2008(4) CIVIL COURT CASES 573 (H.P.)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Notice - Notice sent under certificate of posting at correct address - Notice not received back - There is presumption of service of notice. (First Learning Quest Private Ltd. Vs M/s Tera Construction Private Ltd.), 2008(4) CIVIL COURT CASES 578 (DELHI)

Negotiable Instruments Act, 1881, 138, 139-- - Dishonour of cheque - `Legally enforceable debt' - Lack of pleading - There is no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability - The burden of proving that there was no existing debt or liability is on the accused which they have to discharge in the trial. (First Learning Quest Private Ltd. Vs M/s Tera Construction Private Ltd.), 2008(4) CIVIL COURT CASES 578 (DELHI)

Negotiable Instruments Act, 1881, 138, 139-- - Dishonour of cheque - Presumption u/s 139 - Available only when it is proved that cheque was drawn by accused - To draw a cheque it must be prepared by the drawer himself or cause the relevant details in the cheque to be filled up by another person under his instructions but the cheque shall be signed by the drawer himself - Name of payee not written - No evidence that complainant entered his name as payee as per instructions of accused - Held, a mere signature in the cheque or a writing of the amount or date in the cheque is not sufficient to conclude that the cheque is drawn by the accused in favour of the complainant. (Jose Vs P.C.Joy), 2008(4) CIVIL COURT CASES 589 (KERALA)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Complaint - Civil suit also filed for recovery of the cheque amount - Proceedings u/s 138 of the Act cannot be quashed on ground of filing of civil suit for recovery of cheque amount. (M/s.Atma Tube Products Ltd. Vs The Tata Steel Ltd.), 2008(4) CIVIL COURT CASES 422 (P&H)

#1: HIMACHAL PRADESH HIGH COURT

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Summoning on basis of photocopies of cheque and bank memos - Summoning order suffers no illegality. (Laiq Ram Vs

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Bal Krishan), 2008(4) CIVIL COURT CASES 671 (H.P.) #2: KERALA HIGH COURT

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Offence u/s 138 of the Act is both technical as also one involving no moral turpitude. (Mrs.Jain Babu Vs K.J.Joseph), 2008(4) CIVIL COURT CASES 625 (KERALA)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Summons - Magistrate can dispense with personal attendance of accused at the time of issuance of summons - There is no impediment whatsoever for a fair and efficient trial if only a summons u/s 205 Cr.P.C. is issued in all prosecutions u/s 138 of the Act. (Mrs.Jain Babu Vs K.J.Joseph), 2008(4) CIVIL COURT CASES 625 (KERALA)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Summons - When

summons are issued u/s 204 Cr.P.C. then at any stage before actual appearance of accused or after such appearance, power u/s 205 Cr.P.C. can be invoked. (Mrs.Jain Babu Vs K.J.Joseph), 2008(4) CIVIL COURT CASES 625 (KERALA)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Summons issued dispensing with personal attendance of accused - In such a case examination of accused u/s 313(1)(b) Cr.P.C. can also be dispensed with. (Mrs.Jain Babu Vs K.J.Joseph), 2008(4) CIVIL COURT CASES 625 (KERALA)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - At stage of defence evidence, there is no obligation for accused to personally appear. (Mrs.Jain Babu Vs K.J.Joseph), 2008(4) CIVIL COURT CASES 625 (KERALA)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Summons issued dispensing with personal attendance of accused - Such an accused when directed only to appear to receive judgment must be held to be person to whom the benefit of S.389(3) is available. (Mrs.Jain Babu Vs K.J.Joseph), 2008(4) CIVIL COURT CASES 625 (KERALA)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Absence of complainant - Mere absence of a complainant does not entail consequences u/s 256 Cr.P.C. - Presence of complainant can only be insisted if progress of the case demands such appearance - On all other dates from the date of filing of complaint to date of judgment he can also be permitted to be represented by his counsel. (Mrs.Jain Babu Vs K.J.Joseph), 2008(4) CIVIL COURT CASES 625 (KERALA)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - In a prosecution u/s 138 of the Act discretion u/s 205 Cr.P.C. must be exercised in favour of accused. (Mrs.Jain Babu Vs K.J.Joseph), 2008(4) CIVIL COURT CASES 625 (KERALA)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Summons issued dispensing with personal attendance of accused - In such a case plea of accused can be recorded through his counsel. (Mrs.Jain Babu Vs K.J.Joseph), 2008(4) CIVIL COURT CASES 625 (KERALA)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Cheque issued in favour of proprietorship firm - Complaint filed by proprietor of firm - Accused denied that complainant was proprietor of the said concern - No evidence adduced that complainant was the proprietor of the firm in whose favour the cheque was issued - Held, complainant was not entitled to file the complaint - Accused acquitted of all the charges. (Kalim M.Khan Vs State of Maharashtra & Anr.), 2008(4) CIVIL COURT CASES 666 (BOMBAY)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Summons issued

dispensing with personal attendance of accused - If accused is acquitted or accused is convicted and sentenced with a fine only then it is not necessary to insist on personal presence of accused to receive judgment - However, if sentence is one of substantive imprisonment, then accused can be directed u/s 205(2) Cr.P.C. to appear personally. (Mrs.Jain Babu Vs K.J.Joseph), 2008(4) CIVIL COURT CASES 625 (KERALA)

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Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Sentence - Court may enforce order of payment of compensation by imposing sentence in default - Contention that the substantive sentence of imprisonment in default of payment of compensation could not have been imposed rejected. (Kalim M.Khan Vs State of Maharashtra & Anr.), 2008(4) CIVIL COURT CASES 666 (BOMBAY)

#14: CALCUTTA HIGH COURT

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Premature complaint - Payment not made at all - It causes no prejudice to the accused - Conviction upheld. (Krishan Gupta & Anr. Vs State of West Bengal & Anr.), 2008(3) CIVIL COURT CASES 037 (CALCUTTA) #15: DELHI HIGH COURT

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Post dated cheque - Bank account attached by Court - Accused not liable - Act of attachment of bank account of drawer cannot be said to be a voluntary act of the drawer. (Vijay Choudhary Vs Gyan Chand Jain), 2008(4) CIVIL COURT CASES 712 (DELHI)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Issuance of cheque without having sufficient balance in the account of the drawer does not by itself tantamount to the commission of an offence u/s 138 of the Act. (Vijay Choudhary Vs Gyan Chand Jain), 2008(4) CIVIL COURT CASES 712 (DELHI)

Negotiable Instruments Act, 1881, 138, 139, 118-- - Presumption available u/ss 138, 139 & 118 are all rebuttable presumptions. (Chicho Ursula D'Souza Vs Goa Plast Pvt.Ltd.), 2008(4) CIVIL COURT CASES 765 (BOMBAY)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Cheque dishonoured with endorsement 'present again' - Held, complainant need not to wait to present the same again and can proceed with the prosecution of the accused. (Chicho Ursula D'Souza Vs Goa Plast Pvt.Ltd.), 2008(4) CIVIL COURT CASES 765 (BOMBAY)

Negotiable Instruments Act, 1881, 138, 142-- - Dishonour of cheque - Company -

Complaint must be filed by a person authorized by a resolution of the board of directors or by articles of association of the company. (Chicho Ursula D'Souza Vs Goa Plast Pvt.Ltd.), 2008(4) CIVIL COURT CASES 765 (BOMBAY)

Negotiable Instruments Act, 1881, 138, 142-- - Dishonour of cheque - Company - Filed by power of attorney holder - Power of attorney given by one of the Directors - Held, complaint is not filed by the company as required u/s 142(a) - On such complaint no process could have been issued and no conviction could have been imposed. (Chicho Ursula D'Souza Vs Goa Plast Pvt.Ltd.), 2008(4) CIVIL COURT CASES 765 (BOMBAY)

#21: GUJARAT HIGH COURT

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - `Stop payment' - Offence u/s 138 of the Act is committed. (Citichem India Ltd. & Anr. Vs Gujarat Alkalies & Chemical Ltd. & Anr.), 2008(4) CIVIL COURT CASES 784 (GUJARAT)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Notice - Non mention in complaint as to reply given to statutory notice - Complaint cannot be quashed on this ground. (Citichem India Ltd. & Anr. Vs Gujarat Alkalies & Chemical Ltd. & Anr.), 2008(4) CIVIL COURT CASES 784 (GUJARAT)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Notice - In reply to notice offer made to make payment by giving other cheques - It is a conditional offer - Cannot be said that drawer was ready and willing to make the payment - Complaint cannot be quashed on this ground - Plea to be raised during trial. (Citichem India Ltd. & Anr. Vs Gujarat Alkalies & Chemical Ltd. & Anr.), 2008(4) CIVIL COURT CASES 784 (GUJARAT)

Negotiable Instruments Act, 1881, 138, 141-- - Dishonour of cheque - Company - Directors - Being Director of the company a Director is not jointly and severally liable for the acts of the company - No averment in complaint that at the time when offence was committed accused No.2 to 7 were incharge and were responsible to the company for the conduct of the business of the company - Complaint against accused 2 to 7 quashed. (Anoop Jhalani Vs State & Anr.), 2008(3) CIVIL COURT CASES 019 (DELHI) : 2008(3) CRIMINAL COURT CASES 350 (DELHI)

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Negotiable Instruments Act, 1881, 138, 139-- - Dishonour of cheque - Cheque without consideration - Onus to prove is on person who asserts so - Accused neither examined himself nor examined any witness - Burden of proving that the cheque was not issued towards

discharge of any debt or other liability was thus not discharged. (Kalim M.Khan Vs State of Maharashtra & Anr.), 2008(4) CIVIL COURT CASES 666 (BOMBAY)

Negotiable Instruments Act, 1881, 138, 139-- - Dishonour of cheque - Issuance of cheque in discharge of legal liability - Presumption as to - Rebuttable - To rebut presumption it is not necessary to lead positive evidence - Presumption can be rebutted from the circumstances on record - For rebutting such presumption, what is needed is to raise a probable defence - Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. (Raman Finance Corporation Vs Harmeet Singh), 2008(3) CIVIL COURT CASES 273 (P&H) (DB) #2: PUNJAB & HARYANA HIGH COURT

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Compensation - Cheque amount Rs.15, 000/- - Sentence of 1 year awarded to accused reduced to period of 2 months already undergone - Petitioner directed to pay compensation of Rs.30, 000/- to the complainant. (Charanjit Singh Vs Brij Mohan Gupta & Anr.), 2008(2) CRIMINAL COURT CASES 945 (P&H) : 2008(3) CIVIL COURT CASES 096 (P&H)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Dismissal of complaint in default - Magistrate cannot order restoration of complaint even if complainant shows very good reasons for his failure to be present on the date of dismissal of complaint - The only remedy available to the complainant is to approach High Court u/s 482 Cr.P.C. for setting aside the order of dismissal of complaint. (Om Parkash Vs M/s.Golden Forest India Ltd. & Ors.), 2008(3) CIVIL COURT CASES 105 (P&H)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Dismissal of complaint in default - Wrong date noted by counsel - Reason for non appearance, held, bonafide - Complaint ordered to be restored. (Om Parkash Vs M/s.Golden Forest India Ltd. & Ors.), 2008(3) CIVIL COURT CASES 105 (P&H)

#5: ORISSA HIGH COURT

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Jurisdiction - Court at the place where cheque was given in respect of transactions made at that place has jurisdiction to try the offence u/s 138 of Negotiable Instruments Act. (Mahesh Jain & Anr. Vs Oswal Chemicals & Fertilizers Ltd.), 2008(3) CIVIL COURT CASES 132 (ORISSA)

Negotiable Instruments Act, 1881, 138, 141-- - Dishonour of Cheque - Company - Directors - Sleeping director - If any Director of the company claims that he was not the person looking after the affairs of the company this fact has to be proved by him by leading cogent evidence before the trial Court - A creditor is not supposed to know are the sleeping directors or actively involved directors in the management of the company - Resignation of the petitioner from the company is a defence of the petitioner which he can take before the trial Court - Petition to quash summoning order dismissed. (Bharat Poonam Chand Shah Vs Dominors Printech India Pvt. Ltd.), 2008(2) CRIMINAL COURT CASES 792 (DELHI) : 2008(3) CIVIL COURT CASES 144 (DELHI)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Complaint - Parties compromised - A new cheque in lieu of cheque dishonoured issued - Second cheque also dishonoured - Complaint on the basis of second cheque is not maintainable as second cheque issued in terms of compromise does not create a new liability - As the compromise did not fructify, the same cannot be said to have been issued towards payment of debt. (Lalit Kumar Sharma & Anr. Vs State of U.P. & Anr.), 2008(3) CIVIL COURT CASES 171 (S.C.)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Ingredients of the

provision are : (i) that there is a legally enforceable debt; (ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which

presupposes a legally enforceable debt; and (iii) that the cheque so issued had been returned due to insufficiency of funds. (Lalit Kumar Sharma & Anr. Vs State of U.P. & Anr.), 2008(3) CIVIL COURT CASES 171 (S.C.)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Complaint - Death of complainant - An application filed to bring on record L.R's - Application not pressed despite numerous hearings - None represented the complainant on 14 dates - Accused attended Court

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for not less than 20 occasions after the death of the original complainant - Accused rightly acquitted by trial Court. (S.Rama Krishna Vs S.Rami Reddy (D) By His Lrs. & Ors.), 2008(2) APEX COURT JUDGMENTS 291 (S.C.) : 2008(2) CRIMINAL COURT CASES 891 .(S.C.) : 2008(3) CIVIL COURT CASES 196 (S.C.) : AIR 2008 SC 2066

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Blank cheque alleged to be issued at the time of joining the committee being run by complainant - Financial condition of complainant not such as to lend an amount of Rs.80, 000/- - No offence is committed u/s 138 of the Act when such a cheque is dishonoured. (Naranjan Lal Sharma Vs Usha Bansal), 2008(3) CIVIL COURT CASES 209 (P&H)

Negotiable Instruments Act, 1881, 138, 141-- - Dishonour of cheque - Company -

Complaint against Chairman, Joint Managing Director and three Directors - Allegation that they were officers and responsible for the affairs of the company - It is sufficient compliance within the meaning of S.141 of the Act - Complaint cannot be quashed on the ground that there is no averment they were incharge of and responsible to the company for conduct of business of the company. (Paresh P.Rajda Vs State of Maharashtra), 2008(2) APEX COURT JUDGMENTS 413 (S.C.) : 2008(3) CIVIL COURT CASES 253 (S.C.) : 2008(3) CRIMINAL COURT CASES 192 (S.C.) : 2008(2) KLT 983 (SC) : AIR 2008 SC 2357

Negotiable Instruments Act, 1881, 138, 141-- - Dishonour of cheque - Company - Accused summoned being Directors of Company - Defence of accused that they had nothing to do with the affairs of the company - Held, that complainant had pleaded in his complaint that petitioners were directors of the company and were in-charge and responsible for the affairs and business of the Company - No ground to quash the complaint. (R.L.Verma & Ors. Vs J.K.Verma & Ors.), 2008(3) CIVIL COURT CASES 084 (DELHI)

Negotiable Instruments Act, 1881, 138, 141-- - Dishonour of cheque - Company - Directors - S.141 of the Act provides for a constructive liability - A legal fiction has been created thereby - The statute being a penal one, should receive strict construction - It requires strict compliance of the provision - Specific averments in the complaint petition so as to satisfy the requirements of Section 141 of the Act are imperative - Mere fact that at one point of time some role has been played by the accused may not by itself be sufficient to attract the constructive liability under Section 141 of the Act. (DCM Financial Services Ltd. Vs J.N.Sareen & Anr.), 2008(2) APEX COURT JUDGMENTS 446 (S.C.) : 2008(3) CIVIL COURT CASES 266 (S.C.) : 2008(3) CRIMINAL COURT CASES 303 (S.C.) : 2008(3) RCR(CRL.) 152 : 2008(3) RCR(C) 270 : 2008(8) SCALE 54 : 2008(3) RAJ 679 : AIR 2008 SC 2255

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Compensation - Accused directed to pay double the amount of cheque instead of payment of cheque amount as ordered by Courts below and in case of default to undergo simple imprisonment for six months.

(A.B.M.Raja Sah Vs B.M.S.Srinivasa Sah), 2008(3) CIVIL COURT CASES 453 (MADRAS) : 2008(3) CRIMINAL COURT CASES 402 (MADRAS)

Negotiable Instruments Act, 1881, 138, 139-- - Dishonour of cheque - Rebuttal of presumption as to issuance of cheque in discharge of legal liability - Complainant a

businessman not producing any account to prove advancement of loan - Failure to produce even loan agreement - Presumption stands rebutted - To rebut presumption accused need not to lead positive evidence - Presumption can be rebutted from the circumstances on record. (Raman Finance Corporation Vs Harmeet Singh), 2008(3) CIVIL COURT CASES 273 (P&H) (DB)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Complaint on the basis of dishonour of cheque for the second time - Once cause of action has accrued to the complainant at the time of dishonour of cheque, it is not open to complainant to present the cheque for the second time to bring the matter in limitation - Complaint quashed. (Satish Kumar Vs Mohan Singh Gidda), 2008(3) CIVIL COURT CASES 314 (P&H)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Cheque issued by Govt. company - BIFR declared the company sick - No impediment in initiating proceedings u/s 138 of the Act against company or its Directors. (M/s.Hindustan Cables Ltd. & Ors. Vs State Govt. of NCT of Delhi & Ors.), 2008(3) CIVIL COURT CASES 326 (DELHI)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Recall of summoning order - Magistrate cannot recall the summoning order - The only course available to an aggrieved

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person is to challenge the summoning order by filing a petition u/s 482 Cr.P.C. (M/s.Hindustan Cables Ltd. & Ors. Vs State Govt. of NCT of Delhi & Ors.), 2008(3) CIVIL COURT CASES 326 (DELHI)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Notice - Demand of higher amount than amount of cheque - It is not a statutory notice - Complaint quashed. (Gaurav Singh Rathore & Anr. Vs M/s.Tai-Pan Traders Ltd.), 2008(3) CIVIL COURT CASES 334 (P&H) : 2008(3) CRIMINAL COURT CASES 617 (P&H)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Non appearance of complainant - Dismissal in default - Held, that great prejudice will be caused to complainant if his complaint goes undefended particularly when the amount involved is Rs.4.27 lakhs - Complaint restored. (M/s.Ambassador Cards Pvt. Ltd. Vs State & Anr.), 2008(3) CIVIL COURT CASES 350 (DELHI)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Company declared sick by BIFR - Held, S.22 of SICA does not create any legal impediment for instituting and proceeding with a criminal case u/s 138 of the Act - Summoning order upheld. (M/s.Aefloat Textiles (India) Ltd. & Anr. Vs M/s.Boghara Polyfab Pvt. Ltd. & Anr.), 2008(3) CIVIL COURT CASES 358 (BOMBAY) #22: DELHI HIGH COURT

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Public servant - Sanction for prosecution - Cheque issued by M.D. State Transport Corporation towards payment of instalments or payment of loan - M.D. was performing only his official functions - Sanction for prosecution is mandatory before cognizance of offence u/s 138 NI Act is taken - Prior sanction for prosecution not taken - Summoning order passed by Magistrate u/s 138 of the Act set aside. (K.Suresh Vs M/s.Lloyds Finance Ltd. & Anr.), 2008(3) CIVIL COURT CASES 368 (DELHI)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Complaint signed and verified by power of attorney holder - It is a defective complaint as complaint must be signed by the complainant - However, it is a curable defect - Death of complainant before curing said defect - Power of attorney holder sought leave of Court to prosecute the complaint on her behalf - Held, that when the initial complaint itself was defective there arises no question of

substitution of legal heirs - Summoning order quashed. (Mr.Roy Joseph Creado & Ors. Vs Sk.Tamisuddin), 2008(3) CIVIL COURT CASES 443 (BOMBAY)

Negotiable Instruments Act, 1881, 138, 139-- - Dishonour of cheque - Signatures admitted - Held, once signatures in the impugned cheques were admitted then there is presumption u/s 139 of the Act. (A.B.M.Raja Sah Vs B.M.S.Srinivasa Sah), 2008(3) CIVIL COURT CASES 453 (MADRAS) : 2008(3) CRIMINAL COURT CASES 402 (MADRAS)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Company - Post dated cheque - Director who resigned before presentation and dishonour of cheque cannot be prosecuted. (DCM Financial Services Ltd. Vs J.N.Sareen & Anr.), 2008(2) APEX COURT

JUDGMENTS 446 (S.C.) : 2008(3) CIVIL COURT CASES 266 (S.C.) : 2008(3) CRIMINAL COURT CASES 303 (S.C.) : 2008(3) RCR(CRL.) 152 : 2008(3) RCR(C) 270 : 2008(8) SCALE 54 : 2008(3) RAJ 679 : AIR 2008 SC 2255

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Ink used in filling the body of cheque different from ink used in appending signatures - Held, that filling up of the blanks in cheque by itself does not amount to forgery. (Ganga Prashad Vs Lalit Kumar), 2008(3) CIVIL COURT CASES 630 (P&H)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - For application of the provision of S.138 of the Act three conditions required to be fulfilled are : (i) that the cheque must be presented to the bank within a period of six months from the date on which it is drawn; (ii) that the payee makes a demand of the amount by giving notice in writing to the drawer of the cheque within 30 days of the receipt of information of dishonour of the cheque; and (iii) that the drawer of the cheque fails to make payment within 15 days of the receipt of the notice - It is only when these three conditions are satisfied that the provisions of section 138 would be

attracted. (Tajuddin M.Somji Vs Jivrai Raoji Gandhi & Jivraj Raoji & Anr.), 2008(3) CIVIL COURT CASES 503 (BOMBAY)

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Complaint filed before expiry of 15 days from the date of receipt of notice by drawer of cheque - Complaint not maintainable. (Tajuddin M.Somji Vs Jivrai Raoji Gandhi & Jivraj Raoji & Anr.),

2008(3) CIVIL COURT CASES 503 (BOMBAY) #4: BOMBAY HIGH COURT

Negotiable Instruments Act, 1881, 138, 141-- - Dishonour of cheque - Proprietorship firm - Complaint filed against proprietorship firm through its proprietor - Complaint is maintainable so long as the identification of human individual behind the curtain is possible without any mistake. (Natesha Securities Vs Vinayak Waman Mokashi & Anr.), 2008(3) CIVIL COURT CASES 537

(BOMBAY)

Negotiable Instruments Act, 1881, 138, 142-- - Dishonour of cheque - Proprietorship

concern - In a criminal complaint u/s.138 of NI Act it is permissible to lodge the complaint in the name of the proprietary concern itself. (M/s.Shankar Finance & Investments Vs State of Andhra Pradesh & Ors.), 2008(3) CIVIL COURT CASES 586 (S.C.)

Negotiable Instruments Act, 1881, 138, 141-- - Power of Attorney holder can initiate

criminal proceedings on behalf of his Principal. (M/s.Shankar Finance & Investments Vs State of Andhra Pradesh & Ors.), 2008(3) CIVIL COURT CASES 586 (S.C.)

Negotiable Instruments Act, 1881, 138, 142-- - Dishonour of cheque - Proprietorship concern - Power of Attorney holder - Complaint filed by proprietorship firm through power of attorney holder - Complaint signed by power of attorney holder and not by proprietor - Held, complaint is duly filed by the payee. (M/s.Shankar Finance & Investments Vs State of Andhra Pradesh & Ors.), 2008(3) CIVIL COURT CASES 586 (S.C.)

Negotiable Instruments Act, 1881, 138, 142-- - Dishonour of cheque - Proprietorship concerned - Power of attorney holder - Sworn statement of attorney holder - Power of attorney holder can be examined as the complainant when he is personally aware of the transactions, and the complaint is signed by the attorney holder on behalf of the payee. (M/s.Shankar Finance & Investments Vs State of Andhra Pradesh & Ors.), 2008(3) CIVIL COURT CASES 586 (S.C.)

Negotiable Instruments Act, 1881, 138, 142-- - Dishonour of cheque - Proprietorship concern - Complaint u/s.138 of the Act - Complaint can by filed (i) by the proprietor of the

proprietary concern, describing himself as the sole proprietor of the `payee'; (ii) The proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor; and (iii) the proprietor or the proprietary concern represented by the attorney-holder under a power of attorney executed by the sole proprietor. (M/s.Shankar Finance & Investments Vs State of Andhra Pradesh & Ors.), 2008(3) CIVIL COURT CASES 586 (S.C.)

Negotiable Instruments Act, 1881, 138, 142-- - Dishonour of cheque - Proprietorship concern - Complaint u/s 138 of the Act - Complaint can be filing by describing viz. (1) ABC, sole proprietor of M/s XYZ or (2) M/s XYZ, a sole proprietary concern represented by its proprietor ABC or (3) ABC, sole proprietor of M/s XYZ represented by his Attorney Holder DEF or (4) M/s XYZ, a proprietary concern of Mr.ABC represented by his Attorney Holder Mr.DEF. (M/s.Shankar Finance & Investments Vs State of Andhra Pradesh & Ors.), 2008(3) CIVIL COURT CASES 586 (S.C.)

Negotiable Instruments Act, 1881, 138, 141-- - Dishonour of cheque - Company - Prosecution of signatory without prosecution of company itself - Difference of opinion as to whether signatory only can be prosecuted without prosecution of company - In view of

difference of opinion matter referred to larger bench. (Aneeta Hada Vs M/s.Godfather Travels & Tours Pvt. Ltd.), 2008(2) APEX COURT JUDGMENTS 690 (S.C.) : 2008(3) CRIMINAL COURT CASES 168 (S.C.) : 2008(3) CIVIL COURT CASES 604 (S.C.)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Existence of a debt or legally enforceable liability - Can only be decided after parties lead evidence - Proceedings cannot be quashed on the ground of non existence of debt or legally enforceable liability. (Abhay Prabhaker Lele Vs Raosaheb Mahaveer Chimanna & Anr.), 2008(3) CIVIL COURT CASES 463 (BOMBAY) : 2008(3) CRIMINAL COURT CASES 056 (BOMBAY)

Negotiable Instruments Act, 1881, 138, 139-- - Dishonour of cheque - Presumption -

Rebuttable presumption - Presumption that cheque was issued for a debt or liability is in favour of holder of cheque - This is a rebuttable presumption which can be rebutted only by the person

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who drew the cheque. (Ganga Prashad Vs Lalit Kumar), 2008(3) CIVIL COURT CASES 630 (P&H) #14: PUNJAB & HARYANA HIGH COURT

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Complaint - Dismissal in default - Complaint fixed for recording preliminary evidence - Non appearance of complainant - Instead of dismissing the complaint in default Magistrate ought to have adjourned the complaint to another date. (Danvanti Mutual Benefits Ltd. Vs State of Haryana & Anr.), 2008(2) CIVIL

COURT CASES 007 (P&H) : 2008(2) CRIMINAL COURT CASES 300 (P&H) #15: PUNJAB & HARYANA HIGH COURT

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Loan - Post dated cheque issued - Amount not reflected in Income-tax return - Loan given from personal account - For this reason complaint might not have felt the necessity to reflect the same in his income-tax return - No interference in order of conviction. (Ganga Prashad Vs Lalit Kumar), 2008(3) CIVIL COURT CASES 630 (P&H)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Cheque amount Rs.1.82 lakhs - Accused convicted and sentenced to one year RI and to pay fine of Rs.10, 000/- -

Accused facing trial since 1.9.2005 and has undergone more than 3 months of actual sentence - Sentence of imprisonment reduced to period already undergone. (Ganga Prashad Vs Lalit

Kumar), 2008(3) CIVIL COURT CASES 630 (P&H) #17: ANDHRA PRADESH HIGH COURT

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Non bailable warrants issued against accused as they failed to appear inspite of many opportunities given to them - Case was fixed for recording statement of accused u/s 313 Cr.P.C. - Complaint dismissed for inability of police to execute non bailable warrants entrusted to them on the ground that complainant did not take steps for execution - Held, that if non bailable warrants entrusted to police are not executed, Court has to take steps to see that they are executed by taking such steps as are available to it - Appeal allowed - Order of Magistrate dismissing complaint set aside. (Sri Lakshmi Chennakesava Cotton Company Vs State of A.P. & Ors.), 2008(3) CIVIL COURT CASES 645 (A.P.)

Negotiable Instruments Act, 1881, 138, 141, 142-- - Dishonour of cheque - Company - Averment that applicant is the promoter and controller of the company - No averment as to how and in what manner the promoter and controller is responsible for the conduct of the business of the company or otherwise responsible to it in regard to its functioning - Applicant had not issued cheque in question to the complainant - No averment as to how appellant is responsible for dishonour of cheque - Held, averments not sufficient to satisfy the requirements of S.141 of the Act - Summoning order quashed. (Bhagirath Arya Vs State of U.P. & Ors.), 2008(3) CIVIL COURT CASES 668 (ALLAHABAD) : 2008(3) CRIMINAL COURT CASES 648 (ALLAHABAD) #19: BOMBAY HIGH COURT

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Company - Complaint not stating that on the date of commission of offence, applicant was in any way in-charge of and responsible for the conduct of the business of the company - Complaint against applicant quashed. (Vinod Hingorani Vs State of Maharashtra & Anr.), 2008(3) CIVIL COURT CASES 675 (BOMBAY)

#20: RAJASTHAN HIGH COURT

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Accused convicted and sentenced to six months and fine of Rs.1, 25, 000/- imposed and in default of payment of fine to further undergo simple imprisonment for 45 days - Suspension of sentence - Sentence

suspended on condition of depositing amount of Rs.85, 000/- out of fine of Rs.1, 25, 000/- - Condition modified and accused directed to deposit Rs.25, 000/- only. (Babu Singh Vs State of Rajasthan & Anr.), 2008(3) CIVIL COURT CASES 730 (RAJASTHAN)

Negotiable Instruments Act, 1881, 138, 145-- - Dishonour of cheque - Complaint - Criminal Court cannot compel complainant to file proof affidavit in lieu of examination-in-chief.

(Subramanian Vs Krishnakumar), 2008(3) CIVIL COURT CASES 743 (KERALA) #22: KERALA HIGH COURT

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Cheque issued for time barred debt - Attracts penal provision of S.138 of the Act - Cheque dishonoured for insufficiency of funds - Accused convicted. (Sooryan Vs Sreedharan), 2008(3) CIVIL COURT CASES 763

(KERALA)

#23: RAJASTHAN HIGH COURT

Negotiable Instruments Act, 1881, 138, 147-- - Dishonour of cheque - Compromise in revision - Offence under Act is compoundable - Complainant permitted to compound offence -

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Accused acquitted. (Santosh Kumari Vs State of Rajasthan & Anr.), 2008(3) CIVIL COURT CASES 814 (RAJASTHAN)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Complaint - Dismissal for non appearance of complainant when complaint was fixed for recording preliminary evidence - Provision of S.256 Cr.P.C. comes into play only when the summons have been issued on a

complaint for the appearance of the accused - It is not applicable at the preliminary stage when only the complaint has been filed and the preliminary evidence is yet to be recorded. (Danvanti Mutual Benefits Ltd. Vs State of Haryana & Anr.), 2008(2) CIVIL COURT CASES 007 (P&H) : 2008(2) CRIMINAL COURT CASES 300 (P&H)

Negotiable Instruments Act, 1881, 138, 141-- - Dishonour of cheque - Liability of company where substantive sentence is provided - A company can be proceeded against in a criminal proceeding even where imposition of substantive sentence is provided for. (Aneeta Hada Vs M/s.Godfather Travels & Tours Pvt. Ltd.), 2008(2) APEX COURT JUDGMENTS 690 (S.C.) : 2008(3) CRIMINAL COURT CASES 168 (S.C.) : 2008(3) CIVIL COURT CASES 604 (S.C.)

Negotiable Instruments Act, 1881, 138, 147-- - Dishonour of cheque - Compounding of offence - Parties compounding offence during revision - Allowed - Conviction set aside. (Surindera Rani Vs Smt.Kiran Bala & Anr.), 2008(2) CIVIL COURT CASES 114 (P&H) : 2008(2) CRIMINAL COURT CASES 208 (P&H)

#2: ANDHRA PRADESH HIGH COURT

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Legally enforceable debt - Presumption is in favour of holder of cheque that it was issued to discharge debt or other

liability - Plea that cheque was stolen and misused can only be proved during trial - Proceedings cannot be quashed. (Karanam Visweswara Rao Vs State of Andhra Pradesh & Ors.), 2008(1) CRIMINAL COURT CASES 146 (A.P.) : 2008(2) CIVIL COURT CASES 038 (A.P.)

Negotiable Instruments Act, 1881, 138, 147-- - Offence u/s 138 is compoundable without permission of Court. (Sabu George & etc. Vs Home Secretary, Department of Home Affairs, New Delhi & Anr.), 2008(2) CIVIL COURT CASES 040 (KERALA)

Negotiable Instruments Act, 1881, 138, 147-- - Compounding of offence after verdict of conviction and sentence becomes final - In such a case High Court can exercise its power u/s 482 Cr.P.C. as also under Article 226 and 227 of Constitution - In such a case power u/s 482 Cr.P.C. can be invoked after disposal of revision notwithstanding the bar u/s 362 Cr.P.C. (Sabu George & etc. Vs Home Secretary, Department of Home Affairs, New Delhi & Anr.), 2008(2) CIVIL COURT CASES 040 (KERALA)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Payment after commission of offence - Once the offence is committed, any payment made subsequent thereof, will not absolve the accused of the liability of the criminal offence, though in the matter of awarding of sentence, it may have some effect on the Court trying the offence. (Vishnu Bhat Vs Narayan R.Bandekar & Ors.), 2008(2) CIVIL COURT CASES 052 (BOMBAY)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Notice - Refusal - Refusal to accept has always been considered as good service. (Vishnu Bhat Vs Narayan R.Bandekar & Ors.), 2008(2) CIVIL COURT CASES 052 (BOMBAY)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Termination of service of employee - Accused No.1 Managing Director of company, accused No.2, and partner of firm, accused No.3 - Complainant proved that accused issued the cheque to meet the liability of the company and firm whose Managing Director/partner he was - Accused failed to prove that he stood as surety by issuing the said cheque - Such plea not put forward to the complainant and it was taken as an afterthought - Accused cannot escape his conviction - Accused directed to pay compensation of Rs.20, 000/- to the complainant and in default to undergo SI for 3 months. (Vishnu Bhat Vs Narayan R.Bandekar & Ors.), 2008(2) CIVIL COURT CASES 052 (BOMBAY) #8: PUNJAB & HARYANA HIGH COURT

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Jurisdiction - Notice after dishonour of cheque issued from place `H' - Held, Court at place `H' has territorial jurisdiction to entertain and try the lis between the parties. (M/s.A.K.Desai & Co. & Ors. Vs State of Punjab & Anr.), 2008(2) CIVIL COURT CASES 059 (P&H)

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Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Limitation - Cheque can be presented any number of times within its period of validity and on each dishonour of cheque a fresh right is created - Cause of action accrues only when notice is issued - Once cause of action accrues then complaint has to be filed within period of limitation. (M/s.A.K.Desai & Co. & Ors. Vs State of Punjab & Anr.), 2008(2) CIVIL COURT CASES 059 (P&H)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Cheque dishonoured for the reason 'sign jointly' - Evidence on record that at the time of dishonour of cheque there were not sufficient funds in the account - Once it is so it comes within the mischief of S.138 of the Act - Matter to be finally adjudicated upon on appreciation of evidence to be led by the parties - No ground to quash complaint. (M/s.A.K.Desai & Co. & Ors. Vs State of Punjab & Anr.), 2008(2) CIVIL COURT CASES 059 (P&H)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Loan - As per agreement of parties one month's notice was required to be given prior to presenting the cheque in bank - Notice not given - Enforceability of the debt is not to be tested on touchstone of the procedure provided by the parties in an agreement - Defence of not giving one month's notice prior to presenting the cheque in bank not legally tenable - Order of acquittal set aside - Accused

convicted. (Shyam Gopal Gupta Vs Sanjeev Bhargava), 2008(2) CIVIL COURT CASES 072 (DELHI) : 2008(2) CRIMINAL COURT CASES 063 (DELHI)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Jurisdiction - Debtor should seek the creditor and pay the debt to him at the place where he resides - Cheques payable at place `P' where complainant permanently resides - Held, it is the Court at place `P' which has jurisdiction to try the complaint. (Nutan Damodar Prabhu & Anr. Vs Ravindra Vassant Kenkre & Anr.), 2008(2) CIVIL COURT CASES 010 (BOMBAY)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - By an order of court bank was not to make any payment from out of accounts of company - An employee of the company who issued cheques on behalf of the company cannot be made liable u/s 138 of the Act.

(Ramesh Kumar Vs State of Kerala), 2008(2) CIVIL COURT CASES 099 (KERALA) #14: ANDHRA PRADESH HIGH COURT

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - 'Not negotiable' - As per provision of S.138 of Negotiable Instruments Act there is no distinction between an ordinary cheque and a cheque with an endorsement 'Not negotiable' - Proceedings cannot be quashed on this ground. (M/s.Bezawada Motor Stores & Anr. Vs Smt.Sarala Doulat Ram & Anr.), 2008(2) CIVIL COURT CASES 167 (A.P.)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Complaint - Quashing of - Complaint against company and its Directors - Plea of petitioners that they were not Directors at the time when cheque was issued - Form No.32 under the Companies Act, 1956 placed on

record but there is nothing to show as to when the same was received by the Registrar of

Companies or to show any receipt or proof that it was in fact submitted to the office of Registrar of Companies - Petitioners to lead evidence during trial to prove that they were not Directors of the Company at the relevant time - No case made out to quash proceedings - Petition dismissed. (Prafulla Maheshwari & Ors. Vs State of Maharashtra & Ors.), 2008(2) CIVIL COURT CASES 115 (BOMBAY)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Summoning order - Quashing of - Prima facie ingredients of offence u/s 138 of the Act satisfied - Plea that amount was disputed and that by practising fraud and dishonesty complainant presented the cheque to be proved during trial - Order taking cognizance suffers no infirmity or illegality - Court in such cases should insist on presence of accused on dates on which appearance is necessary - Personal appearance of accused not to be insisted. (Parmod Kumar Rath Vs M/s Aditya Steel Industries Ltd.), 2008(2) CIVIL COURT CASES 131 (ORISSA)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Exemption of personal appearance of accused - Complaint u/s 138 of NI Act can be disposed of mostly on the basis of documents and other evidence - In such a case presence of accused on all dates is not

necessary and Court should only insist on presence of accused on the dates on which

appearance of the accused in Court is necessary for effectual adjudication. (Parmod Kumar Rath Vs M/s Aditya Steel Industries Ltd.), 2008(2) CIVIL COURT CASES 131 (ORISSA)

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Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Joint account - Account could be operated by anyone - Non signatory of the cheque is not liable for the offence

committed u/s 138 of N.I. Act - Under S.138 of the Act, the person who is drawer of the cheque can only be prosecuted and not the other except the contingencies mentioned u/s 141 of the Act. (Smt.Bandeep Kaur Vs S.Avneet Singh), 2008(2) CIVIL COURT CASES 134 (P&H)

Negotiable Instruments Act, 1881, 138, 141-- - Dishonour of Cheque - Joint account of husband and wife - Husband issued cheque drawn to joint bank account to discharge his liability - Wife neither having dealings with the petitioner nor drawer of cheque - Held, wife is not liable - Proceedings against wife quashed. (Smt.Bandeep Kaur Vs S.Avneet Singh), 2008(2) CIVIL COURT CASES 134 (P&H)

Negotiable Instruments Act, 1881, 138, 147-- - Dishonour of cheque - Conviction - Parties compromised during pendency of revision - Amount of cheque and damages paid - Conviction and sentence set aside. (Gurmeet Singh Vs Raj Kumar & Anr.), 2008(2) CIVIL COURT CASES 144 (P&H) : 2008(2) CRIMINAL COURT CASES 075 (P&H)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Issue of process - If complainant makes prima facie averments in complaint such as : (a) Drawing of a cheque in favour of the complainant and the cheque having been signed with a specific amount; (b) Dishonour of cheque and intimation thereto by the concerned bank in writing; (c) Issuance of demand notice by the Payee and its receipt by the drawer; (d) Failure of the drawer to pay the cheque amount within a period of 15 days from the receipt of the notice and (e) The existence of debt or other legally enforceable liability against which the cheque was drawn - Court has no choice but to issue process order on recording verification of the complainant. (Sahakar

Maharshi Shankarrao Mohite Patil Nagari Gramin Sahakari Pathsanstha & Anr. Vs Subhash Bhimrao Gavsane & Anr.), 2008(2) CIVIL COURT CASES 149 (BOMBAY)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Complaint - Quashing of - Existence of debt or any other liability, loss of cheque and complaint to the bank and police station and denying the liability of the cheque amount - All these issues can only be decided after parties adduce evidence - No case made out to invoke jurisdiction u/s 482 Cr.P.C. (Sahakar Maharshi Shankarrao Mohite Patil Nagari Gramin Sahakari Pathsanstha & Anr. Vs Subhash Bhimrao Gavsane & Anr.), 2008(2) CIVIL COURT CASES 149 (BOMBAY)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Loan - Repayment in cash without any receipt - Production of account books - Held, it is for the accused to prove that he had made payment in cash - Documents required to be produced are not at all relevant for deciding the controversy between the parties - Petition dismissed. (G.S.Mayawala & Anr. Vs Om Prakash Mittal), 2008(2) CIVIL COURT CASES 158 (DELHI) : 2008(2) CRIMINAL COURT CASES 221 (DELHI)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Production of account books - Can be ordered only when it is necessary or desirable for the purposes of the trial. (G.S.Mayawala & Anr. Vs Om Prakash Mittal), 2008(2) CIVIL COURT CASES 158 (DELHI) : 2008(2) CRIMINAL COURT CASES 221 (DELHI)

#25: PATNA HIGH COURT

Negotiable Instruments Act, 1881, 138, 142(b)-- - Dishonour of cheque - Delay in filing complaint - Cognizance wrongly taken - Accused discharged. (Birendra Kumar Singh Vs State of Bihar & Anr.), 2008(2) CIVIL COURT CASES 083 (PATNA)

Negotiable Instruments Act, 1881, 138-- - Dishonour of cheque - Cheques returned for revalidation of dates - Accused No.3 changed the dates of cheque and signed the same - Previously cheque was signed by two signatories on behalf of the company and later on after revalidation of dates it was signed by one of the Directors who was also one of the authorized signatory who had earlier signed the cheques - Held, that revalidation of cheques by change of dates is not unknown in commercial transactions - Accused Nos.1 & 2 therefore liable to be prosecuted. (Skyline Aquatech Exports Ltd., Karnataka & Ors. Vs Sachima Agro Industries Pvt.Ltd., Goa), 2008(2) CIVIL COURT CASES 309 (BOMBAY)

Negotiable Instruments Act, 1881, 138, 147-- - Dishonour of cheque - Compounding of offence by Advocate - When authority is granted by a litigant in favour of Advocate which empowers the latter to enter into a settlement, any settlement arrived at, on behalf of a party to a lis is binding on the parties. (R.Rajeshwari Vs H.N.Jagadish), 2008(2) APEX COURT