How to File Case Under Sector 138, Negotiable Instruments Act, 1881- An in Depth Analysis

INTRODUCTION

The declaration of an act under section 138 of the Negotiable Instruments Act as a criminal offence has resulted in an exponential increase inthe litigation dealing with the dishonour of cheque[1].  Negotiable instrument implies the transferable characteristic possessed by a document guaranteeing the payment of a specific amount.[2]  They are instruments of credit that are easily convertible to money and is easily transferable from a person to another. [3]

The Negotiable instruments lose their credibility due to weak moral standards of not honouring the issue of the instrument. These negotiable instruments are the alternatives to meet the demand of money becoming the articles of traffic[4]. The delay in collection of proceeds of a negotiable instrument like that of a cheque defeats the purpose of infusing a speedy alternative in the commerce world.

Thus, the act through section 138 encompasses strict liability which transforms the civil liability into a criminal liability[5] for the cheque as a negotiable instrument that gives sanctity to the credit instruments which can easily be transferable into money. [6] The section was deficient in dealing with the dishonour of cheques leading to Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 which made dishonour of cheque, a compoundable offence and provided an enhanced punishment of two years imprisonment. It also aimed at speedy disposal through the summary trial of cases of cheque bounce. This reinstated the credibility of cheque as a negotiable instrument.

EVOLUTION OF JURISDICTION

Section 138 has always been surrounded by the dispute related to the filing of a complaint to the appropriate court in the case of dishonour of cheques. The law over time has witnessed considerable changes related to the jurisdiction issues that has been interpreted by the courts.

The offences prescribed in section 143 of the Negotiable Act has to be tried in accordance with the procedure mentioned in section 262 to 265 of CrPC by the judicial or metropolitan magistrate. The Magistrate under section 138 of the Negotiable act is empowered to sentence an accused upto two years of imprisonment and fine extending to twice the amount of the cheque. [7]

In Rajesh Agarwal v State and Others, [8]the Delhi high Court issued certain guidelines regarding summary trial under section 138 of the Act.

  1. The Metropolitan Magistrate has to take cognizance and issue a summons if an offence is made out after scrutinising the complaint and documents presented.
  2. On the orders of the Magistrate, the accused then has to furnish bail bond ensuring his appearance during the trial and has to enter the plea of defence and fix the defenseevidence under section 251 CrPc, unless the accused recall for cross examinationof a witness.
  3. An application made by the accused under section 145(2) of Negotiable Instruments Act has to be entertained on the discretion of the court otherwise the court will proceed with the further proceedings.[9]

The act is silent with respect to the filing of criminal complaint’s jurisdiction in the case of dishonour of cheques. The issue of jurisdiction has evolved over time. The courts decided that proceedings of the suit instituted in regards to the Dishonour of the Cheques will be tried by the court within whose jurisdiction the cheque was issued.[10] This position was changed by the Kerela High Court in P.K Muraleedharan v. C.K Pareed and Anr., where the jurisdiction to file the complaint will be invested at the place of residence or business or at the bank to which the accused issue the cheque is located or the place where the cheque was issued or delivered.[11]Delhi High Court, on the other hand, held the place where the cheque was given or handed over to be a relevant territorial jurisdiction to try the accused.[12]

It was in the landmark judgment ofK. Bhaskaran v. SankaranVaidhyanBalan and Anr.,[13]where the Supreme Court of India adjudged the issue of the jurisdiction pertaining to the dishonour of cheques. The court held that to determine the place of the offence, the locality where the bank is situated cannot be the sole criteria but will depend on several factors. Hence, it is difficult to fix any particular place for the same. Reiterating section 138 of NI act and section 178(d) of CrPC, the 5 acts are sine non quafor the completion of the offence and hence the case can be tried in any one of the court exercising jurisdiction in any one of the local areas depending on the discretion of the complainant.

 A new ray to the issue of jurisdiction was given by the case of Harman Electronic Pvt. Ltd v. National Panasonic India Pvt. Ltd.[14], where the Supreme Court held the jurisdiction arises only when the cause of action arises and cannot be conferred on by any act of omission by the accused. Hence, not issuance rather communication give rise to cause of action. Adopting a strict approach for the territorial jurisdiction of the court by interpreting the expression of ‘giving of notice’ as ‘receipt of notice’, the case eliminated the space for misuse of liberal interpretation in Bhaskaran case.[15]

To eradicate the nebulousness caused by the liberal interpretation in Bhaskaran case, the Supreme Court in DashratRupsinghRathod v. State of Maharashtra &Anr[16], declared the place where the drawer bank is located as the only place of jurisdiction to try the case under section 138 of the Negotiable Instruments act and subsequently issued stringent guidelines to prevent the harassment of the parties.

CONCLUSION

The dispute surrounding the jurisdiction under section 138 of the Negotiable Instrument was finally settled in DashrathRathod case, but it only accounted solution for the traditional method of cheque clearance which posed difficulties for modern methods of transactions in cheque paving a way for various amendment as to address the same were proposed.

The 2015 ordinance had the effect of nullifying the law laid in DasratRathod case and aimed at the speedy disposable of cases and maintaining the sanctity of the system by scrutinising the issues of default in payments and dealing with it stringently. The courts realise the social and commercial realities of India and thus, are bound to balance the serious financial crimes.  The changes in the Negotiable Instrument Act minimises the hardships and inconveniences by guaranteeing more precautionary measures to the payee reinstating faith in the credibility of the negotiable instruments.

[1] The Negotiable Instruments Act, 1881, No. 26, Act of Parliament,1881(India). s.138

[2]Shweta Kaushik, Landmark Supreme Court Judgment on Sec 138 of Negotiable Instruments Act, VAKILNO1, (June 3rd, 2019), https://www.vakilno1.com/legalviews/landmark-supreme-court-judgment-sec-138-negotiable-instruments-act.html.

[3] Rangachari (N) v Bharat Sanchar Nigam Ltd., (2007) 3 SCC 626.

[4] Ibid.

[5]Agrima Sharma, Jasmine Malik &Sumit Roy, India: Section 138 Negotiable Instruments Act, 1881- An In Depth Analysis, MONDAQ, (June 3rd, 2019, 11:41) http://www.mondaq.com/india/x/433334/trials+appeals+compensation/Section+138+Negotiable+Instruments+Act+1881+An+In+Depth+Analysis                   .

[6]Dalmia Cement (Bharat) Ltd. v Galaxy Traders and Agencies Ltd (2001) 6 SCC 463.

[7]Supra note 1.

[8]Rajesh Agarwal v State and Others (2010) ILR 6 Del. 610.

[9]Ibid.

[10]Jugal Kishore Arun v V.A Neelakandan. (1990) L.W (Cri) 492.

[11]P.K Muraleedharan v. C.K Pareed and Anr (1993) 1 ALT (Cri) 424.

[12]Canbank Financial Services Ltd. v. Gitanjali Motors and Ors (1995) Cri L.J 1272.

[13]K. Bhaskaran v. SankaranVaidhyanBalan and Anr. (1999) 7 SCC 510.

[14]Harman Electronic Pvt. Ltd v. National Panasonic India Pvt. Ltd. (2009) 1 SCC 720.

[15]Supra note 13.

[16]DashratRupsinghRathod v. State of Maharashtra &Anr AIR (2014) SC 3529.

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