Cheque Bounce Case Section 138 Negotiable Instruments Act 1881, Remedies, Flowchart

Cheque Bounce Case Section 138 Negotiable Instruments Act 1881, Remedies, Flowchart.

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Cheque Bounce Case Section 138 Negotiable Instruments Act 1881, Remedies, Flowchart.

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Cheque Bounce

Dishonor of cheque, also known as a rejection of cheque or check bounce, comes under the ambit of Section 138 of the Negotiable Instruments Act, 1881. The term ‘negotiable instrument’ usually refers to a piece of paper which entitles the holder to claim money, and sometimes even goods. In the realms of the Negotiable Instrument Act, a ‘negotiable instrument’ is a promissory note, bill of exchange or cheque. In this article, we look at cheque bounce and its remedies in India.

Dishonor of Cheque

Section 138 of the Negotiable Instrument Act has provided a comprehensive definition for dishonor of cheque, which has quoted below for your reference:

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 extend 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,  withi fifteen  days of the receipt of the said notice.

Ground for Dishonor

The world is increasingly getting commercial and transactions through cheque are performed on a frequent basis. Though digital innovations play a central role in certain transactions, not all formal transactions are pursued by digital means. This increases the likelihood of cheque transactions.

The usage of cheques requires intricate handling, as the cheque can easily be dishonored, be it due to deliberate errors or trivial mistakes.

A cheque could be dishonored for the following reasons:

  1. Insufficient funds – if the drawer of the cheque doesn’t have adequate funds for the transaction.
  2. Account Closed – if the account doesn’t hold sufficient funds on the particular date of honoring though appropriate balance was credited into the account on the date of issue of cheque
  3. Stop Payment Instruction – if the issuer of cheque presents a ‘stop payment’ instruction.
  4. Name of Payee – if the name of the payee lacks clarity or isn’t mentioned.
  5. Account Number – if the account number is missing or lacks clarity.
  6. Case of Insolvency – if the bank is intimated of the death, lunacy or insolvency of the drawer.
  7. Mismatch of Data – If the amount specified in words and figures mismatches with the other.
  8. Refer to Drawer – if the bank account of the respondent doesn’t hold sufficient funds.
  9. Not a clearing number –when the cheque isn’t presented with the bank on which it was drawn.
  10. Irregular signature – if the signature of the supposed drawer doesn’t match with the specimen signature held by the bank.
  11. Alterations and overwriting –in case of any alterations or overwriting (no alterations or overwriting will be accepted even with the signature of the drawer).
  12. Post-date Cheque – a cheque cannot be presented to the bank before the actual date of transfer of funds, and the same is held as a ground for dishonor of cheque.
  13. Stale cheque – a cheque can be presented to the bank for until three months from the date mentioned in the cheque, post which the cheque will be dishonored.
  14. Frozen Account – an account is frozen on the direction of the government or court, in which case the bank will dishonor the cheques bearing the particular account number.

Types of Dishonor

Dishonor of cheque could occur in the form of:

  • Dishonor of bill of exchange by non-acceptance.
  • Dishonor of promissory note, bill of exchange or cheque by non-payment.

Dishonor by Non-Acceptance

A bill of exchange is classed as dishonored by non-acceptance if the drawee (not being a partner) makes a defaulted acceptance of the bill. The case is also implied where the presentment is excused and the bill is not accepted.

Note: The bill may be treated as dishonored if the drawee is incompetent to contract and on account of disqualification of acceptance.

Dishonor of Promissory Note, Bill of Exchange or Cheque by Non-Payment

A promissory note, bill of exchange or cheque is deemed to be dishonored if the maker of the note, the acceptor of the bill or drawer of the check commits any default in payment. A dishonor by non-acceptance could only be in the form of a bill of exchange, but that of non-payment could be in the form of any negotiable instrument, which includes a bill of exchange.

Ingredients of Dishonor

The following are the essential ingredients of a check bounce:

  • Drawing of cheque by a person for reasons of any debt or liability.
  • Presentation of cheque to a bank within six months of the date of drawing or within the period of validity, whichever is earlier.
  • Return of cheque unpaid by the bank.
  • A notice or intimation is issued to the payee or holder demanding him/her to make the requisite payment.
  • Failure of the drawer to remit the required payment to the payee or the holder in due course of the cheque within 30 days of the receipt of the notice.

Consequences of a Cheque Bounce

If a check is dishonored, the bank issues the payee with a ‘cheque return memo’ stating the reason for such dishonor. The payee may decide on re-submitting the cheque so that it gets honored the second time around but must be wary of the consequences of successive dishonors as it will entitle the payee to legally prosecute the drawer, though not in all cases. The drawer can only be sued for a cheque bounce if the amount mentioned in the cheque is towards the discharge of a debt or any other liability of the defaulter towards the payee, and not for the issue of gifts or unlawful purposes of any kind.

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The payee can initiate legal proceedings against the drawer after offering him/her with an opportunity of repaying the cheque amount immediately by issuing a written notice for the same. If the payer is unable to make the payment within 30 days of the receipt of notice, the payee is entitled to file a criminal complaint under Section 138 of the Negotiable Instruments Act. A case against cheque bounce can be either made directly by the payee or through a power of attorney.

Penalty/Imprisonment

A cheque bounce will attract penalties on the hands of both the drawer and payee. If the cheque so dishonored is against the repayment of any loans, the concerned person will be forced to remit the necessary late payment charges and/or face incarceration of two years.

Annulling of Facilities

The concerned bank of the drawer may stop the chequebook facility and close his/her account for repeat offenses under this provision.

Damage to Credit Score

A cheque bounce will potentially hamper the credit history of the drawer, as the financial institutions will make a report to the payment bureaus on the instance of any default.

Is it Compoundable?

The answer for the same is in the affirmative, as defaults in the nature of dishonor of cheque can be settled out-of-court as per the Negotiable Instruments Act, 1881.

Cause for Compensation

The court is vested with the rights of granting compensation to the payee under Section 357 of the Code of Criminal Procedure, 1973 for any defaults of the drawer. No limits have been prescribed for the compensation till date.

Time-frame for Making Complaints

The courts would take the cognizance of offenses under Section 138 upon receiving a complaint made by the payee in due course of the cheque. The complaint must be issued in writing within a month of the date of the offense. However, an amendment in the year 2002 has facilitated the filing of complaints after this period, if the complainant manages to satisfy the court that the cause for the delay was on reasonable grounds. The complaint must not be made to any court which is inferior to a Metropolitan Magistrate or a Judicial Magistrate of the first class.

Offense by Companies

If a company turns out to be the defaulter of a cheque bounce, the person responsible for the conduct of the company during the issuance of the cheque, as well as the company, will be considered guilty of the offense.

False Case of Cheque Bounce

Certain business dealings may prompt the drawee to present a cheque to the other party as a security. However, the payee may fraudulently deposit the cheque offered as security despite successfully completing the earlier transaction and impose a case of cheque dishonor on the drawer. Given this scenario, the drawee must prove that the secondary cheque was given by way of security and no debts existed at any point in time.

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