Cheque bouncing lawyer in Delhi / india
Now, Jurisdiction to file cheque bouncing complaint under section 138 of Negotiable Instrument Act is very simplified and law is settled after the amendment. After an decade of confusion and turbulences in the jurisdiction, Government has settled the law finally. Bye the virtue of amended provisions, now the holder of the cheque can file a complaint with the jurisdiction of the court where he/she maintains banks account or his home branch is situated.
Normally in the criminal trial, the onus to prove an offence lies upon the complainant/ prosecution. However, in cheque bounce cases, section 115 read with sections 139 of the Negotiable Instruments Act, 1881 places the onus upon the accused to disprove the prima facie view taken by a court qua the transaction in question calls. The law reflects that it is the accused who needs to disprove the alleged transaction, and the complainant doesn’t have the liability to prove the same beyond a reasonable doubt.
Section 138 reads as where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless—
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.—For the purposes of this section, “debt of other liability” means a legally enforceable debt or other liability.
The following are the important stages in a cheque bounce case:-
Offences under section 138 are bailable and compoundable.— Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable.
Section 139 of N I Act draws presumption in favour of holder of the cheque – It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
Section 148 of N I Act draws Power of Appellate Court to order payment pending appeal against conviction. In an appeal by the drawer against conviction under section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent of the fine or compensation awarded by the trial Court. The proviso adds the amount payable under this sub-section shall be in addition to any interim compensation paid by the appellant under section 143A.
The amount referred to in sub-section 148(1) shall be deposited within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the appellant. Further the Appellate Court may direct the release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal.
The following are the important stages in a cheque bounce case.
Normally in the criminal trial, the onus to prove an offence lies upon the complainant/ prosecution. However, in cheque bounce cases, section 115 read with sections 139 of the Negotiable Instruments Act, 1881 places the onus upon the accused to disprove the prima facie view taken by a court qua the transaction in question calls. The law reflects that it is the accused who needs to disprove the alleged transaction, and the complainant doesn’t have the liability to prove the same beyond a reasonable doubt.
Section 138 reads as where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless—
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.—For the purposes of this section, “debt of other liability” means a legally enforceable debt or other liability.
The following are the important stages in a cheque bounce case:-
- Filing of complaint under section 138:
- Sworn on Statement under section 202 Cr.P.C (Pre summoning evidence) Sworn on Statement under section 202 Cr.P.C (Pre summoning evidence)
- Appearance of Accused, after summoning under section 204 of Cr.P.C :
- Recording of Plea / framing of notice under section 251:
- Complainant Evidence / post summoining evidence of the complainant and its witness:
- Statement of the Accused: under section 313 Cr.P.C
- Defence Evidence: Under Section 315/ 311 C.P.C
- Arguments:
- Judgement:
Offences under section 138 are bailable and compoundable.— Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable.
Section 139 of N I Act draws presumption in favour of holder of the cheque – It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
Section 148 of N I Act draws Power of Appellate Court to order payment pending appeal against conviction. In an appeal by the drawer against conviction under section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent of the fine or compensation awarded by the trial Court. The proviso adds the amount payable under this sub-section shall be in addition to any interim compensation paid by the appellant under section 143A.
The amount referred to in sub-section 148(1) shall be deposited within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the appellant. Further the Appellate Court may direct the release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal.
The following are the important stages in a cheque bounce case.
- Filing of complaint under section 138:
- Sworn on Statement under section 202 Cr.P.C (Pre summoning evidence)
- Appearance of Accused, after summoning under section 204 of Cr.P.C :
- Recording of Plea / framing of notice under section 251:
- Complainant Evidence / post summoining evidence of the complainant and its witness:
- Statement of the Accused: under section 313 Cr.P.C
- Defence Evidence: Under Section 315/ 311 C.P.C
- Arguments:
- Judgement: