COMPLAINT
UNDER SECTIONS 138 AND 142 OF THE NEGOTIABLE INSTRUMENTS ACT [CD1]
IN THE COURT OF CHIEF METROPOLITAN
MAGISTRATE....................
Shri.................... s/o....................
R/o....................
...................................................................
Complainant
versus
..........................................................................
Accused
Complaint
u/ss. 138 & 142 of the Negotiable Instrument Act, 1881 as amended by Act 66
of 1988.
The
complainant respectfully submits as under: —
1. That
the accused is Proprietor
of............................................................. dealing....................
2. That
the accused took loan of Rs..................... from the complainant and
executed a pronote on.................... for Rs..................... (A
photocopy of the pronote is Annexure.................... ).
3. That
the accused issued Cheque No..................... dated.................... for
the sum of Rs..................... (Rupees.................... only) drawn
on.................... and gave it to the complainant to discharge his
liability with respect to the said loan amount/pronote. (Photocopy of cheque is
Annexure....................
).
While
issuing the said cheque the accused assured the complainant that the cheque
will be honoured on its presentation.
4. That
the complainant states that the cheque was presented for collection through the
complainant’s bank....................
on........................................ and the said cheque was returned
on.................... as unpaid due to insufficiency of funds in the account
of the accused in the bank with a memorandum ‘refer to drawer’. (Photocopy of
the memorandum of the bank is
Annexure:....................
).
The
accused had thus dishonest and guilty intention right from the beginning at the
time he issued the aforesaid cheque.
5. That
the complainant immediately thereafter contacted the accused and apprised him
about the dishonouring of the cheque but the accused did not pay any heed.
6. That
the complainant states that within fifteen days of the receipt of his
information from the bank regarding dishonour/the return of the cheque as
unpaid, he send a registered AD and U. P.
C.
notice dated................... through his lawyer .................... to the
accused on.................... vide postal receipt No.....................
dated .................... (Post Office.................... ) calling upon the
accused for payment of the said amount alongwith interest due on the
dishonoured cheque within fifteen days from the date of the receipt of the
notice. The accused acknowledged the receipt of the said notice vide acknowledgement
due. (The photostat copies of the postal receipt of the Registered A. D.
Letter/U. P. C. and the A. D. Card are Annexures..................... The
photostat copy of the legal notice is Annexure.................... ). The
accused having received the notice on..................... has failed to make
payment within fifteen days of the receipt of the legal notice.
That
the accused is deemed to have received the Notice on.................... as the
Notice was sent under Registered A/D and as well U. P. C. on....................
The accused having received the notice on.................... has failed to
make payment within fifteen days of the receipt of the legal notice.
7.
That the complainant submits
that accused had issued the cheque without sufficient funds in his bank
account. Therefore the accused committed the offence u/s. 138 of the Negotiable
Instrument Act, 1881 as amended by the Act 66 of 1988 and is liable to be
punished.
8.
That the complainant further
submits that the Accused intentionally induced the complainant to render loan
assistance/to him with preintention not to pay and thereby has cheated the
complainant & committed offences u/ss. 415 and 420 of I. P. C.
9.
The cause of action for the
present prosecution arose on the 16th day i. e. .................... after the
expiry of 15 days of receipt of the aforesaid legal notice, and due to
non-payment of the amount by the accused.
10.
That the complainant further
submits that he has filed the complaint within one month from the date of
expiry of the fifteen days time given under the law for the payment of the said
money. The said cheque was issued at..................... presented at
the.................... where the cheque was returned as unpaid by complaints
Bank and so this Hon’ble Court has jurisdiction to take cognizance of the
offence.
11.
The accused has thus
committed the offences punishable under Sections 415 & 420 I. P. C. and
Section 138 of the Negotiable Instruments Act, 1881, as amended in 1988. The
complainant, however, chooses to prosecute the accused only for the offence
under Section 138 of the Negotiable Instruments Act an amended because of the
said remedy being more efficacious and
speedier.
It
is, therefore, prayed that the accused may be summoned to face the trial under
Section 138 of the Negotiable Instruments Act, 1881, as amended in 1988, tried
and punished thereunder in accordance with law.
It
is also further prayed that this Hon’ble Court may be pleased to order for the
payment of the compensation out of the fine amount u/s. 357 of Cr. P. C. read
with S. 117 of Negotiable Instruments Act to the complainant as follows:
(1) Cheque
Amount Rs. .......................
(2) Bank
Service Charge Rs. .......................
(3) Notice
Charge Rs. .......................
(4) Advocate’s
Fees Rs. .......................
(5) Interest
Amount (upto........) Rs. .......................
Total
Rs......................... (plus interest
@.........
till
payment
Dated at .................. this
............... day of....................
|
|
CASE LAW
S. 138 Negotiable Instruments Act
QUASHING OF COMPLAINT ON
GROUND THAT COMPLAINT DID NOT DISCLOSE DATE ON WHICH NOTICE SERVED.
Mere fact that date of
delivery of notice under Section 138 Clause (c) of proviso of Negotiable
Instruments
Act is not mentioned in the complaint does not affect maintainability of
complaint.1
DISHONOUR
OF CHEQUE (SECTION 138 OF N. I. ACT)
The
offence under section 138 of the Negotiable Instruments Act, can be completed
only with the concatenation of a number of acts. Following are the acts which
are components of the said offence: -
(1) Drawing
of cheque.
(2) Presentation
of cheque to the Bank.
(3) Returning
the cheque unpaid by the drawer bank.
(4) Giving
notice in writing to the drawee of the cheque demanding payment of the cheque
amount.
(5) Failure
of the drawer to make payment within fifteen days of the receipt of notice..
It
is not necessary that all the five acts should have been perpetrated at the
same locality. It is possible that each of those five acts could be done at
five different localities. But concatenation of all the above five is a sine qua non for the completion of the
offence under section 138 of the Act.2
NOTICE
— SERVICE OF
Service of notice of demand
in clause (b) of the proviso to section 138 of Negotiable Instruments
Act,
1881 is a condition precedent for filing a complaint under section 138 of the
Act.3
NOTICE
OF DEMAND (SECTION 138 PROVISO (B))
A
notice cannot be faulted if in addition to "cheque amount" any other
sum by way of interest, cost etc. is separately indicated.4
1. S.
K. Trading & Co. v. Beerbal Dass Jindal, 1996 (3) Crimes 8 (All).
2. K.
Bhaskaran v. Sankaran Vaidhyan Balan, AIR 1999 SC 3762.
3. Central
Bank of India v. M/s. Saxons Farms, AIR 1999 SC 3607.
4. Suman
Sethi v. Ajay K. Churiwal, AIR 2000 SC 828.
DISHONOUR
OF CHEQUE — COMPLAINT OF
Mere
presentation of the complaint in the court cannot be held to mean that its
cognizance had been taken by the Magistrate.5
DISHONOUR OF CHEQUE —
PROSECUTION OF COMPANY
The
winding up proceedings of a company do not render debt unenforceable.6
DISHONOUR
OF CHEQUE — COMPANY DECLARED SICK
The
fact that the company has been declared sick before expiry of period for
payment of cheque amount does not save it or its directors from criminal
prosecution.7
Complaint
under section 138, Negotiable instruments Act can be filed by power of attorney
holder of payee.
It
is obligatory on court under Section 139 of Negotiable Instruments Act to raise
presumption in every case where factual presumption has been established.8
Proceedings
under Section 138 Negotiable Instruments Act cannot be quashed in a petition
under Section 482, Cr. P. C. on a plea that petitioner director of the accused
company had resigned much prior to cause of action had arisen for the case.9
To prosecute a director of company for
offence under Section 138 of Negotiable Instruments Act a bald allegation by
merely repeating those words mentioned in Section 141 of the Act would not be
enough and there must be something more clearly stated in complaint.10
In
a prosecution under Section 138/141 of Negotiable Instruments Act where cheque
has been issued by a partnership firm, all the partners are not liable for
prosecution on a contention that their liability was joint but only those
partners could be prosecuted who were in charge of and were responsible for
conduct of business of firm.11
Cause
of action for filing complaint under Section 138 of Negotiable Instruments Act
arises only once and time for filing complaint would start running from the
date of service of notice issued under Section 138(b) of the Act.12
5. Narsingh
Das Tapadia v. Goverdhan Das Partani, AIR 2000 SC 2946.
6. Pankaj
Mehra v. State of Maharashtra, AIR 2000 SC 1953.
7. Kusum
Ingots and Alloys Ltd. v. Pennar Peterson Securities Ltd., AIR 2000 SC 954.
8. Y.
Sreelatha @ Roja v. Mukanchand Bothra, 2002 (2) Crimes 19.
9.
Smt. Sunaina R. Mathani v.
National Capital Territory of Delhi, 2002 (2) Crimes
61.
10. Neeta
Bhalla (A-4) v. S. M. S. Pharmaceutical Ltd. Hyderabad, 2002 (2) Crimes
89.
11. Punjab
State Coop. Supply & Marketing Federation Ltd. v. M/s. Malerkotla Rice
Mills, 2002 (2) Crimes 178.
12. Mohammed
Jakeer v. Ch. Koli Reddy, 2002 (2) Crimes 188.
Bouncing
of cheque with remarks drawer’s signature incomplete would also attract offence
under Section 138 of Negotiable Instruments Act.13
Once
notice under Section 138 of Negotiable Instruments Act has been sent by regd.
post on the correct address and is returned with an endorsement that
"party was not available" it shall be deemed to have been served.14
The
complaint filed under Section 200, Cr. P. C. or under Section 142 of the
Negotiable Instruments Act would not ipso
facto terminate or abate upon the death of the complainant and his LRs.,
their agents or power of attorney holder could be permitted to prosecute the
complaint under Section 302(2), Cr. P. C. or under Section 142 of the N. I.
Act.15
Cheque
drawn for a loan four years prior to the issuance of cheque does not cease to
be legally enforceable for a complaint under Section 138 of the Negotiable
Instruments Act, 1881.16
Cheque
given by accused in favour of bank for issuance of Demand Draft in favour of
complainant for amount payable to complainant will make complainant payee of
cheque and on dishonour of cheque, complainant was competent to maintain
complaint under Section 138 of Negotiable Instruments Act.17
A
cheque which has become invalid because of the expiry of the stipulated period
could be made valid by alteration of dates.18
A
state cheque can be revalidated by drawer. Change in date with consent is not
material alteration. Whether change in date was voluntary or involuntary is a
question of fact which has to be established by evidence. High Court was thus
wrong in quashing complaint on alleged change in dates of earlier dishonoured
cheques.19
13. Vinod
Tanna v. Zaheer Siddiqui, 2002 (1) Crimes 104.
14. M/s.
VIF Airways Ltd. v. M/s. Aishu Finance Ltd., 2002 (2) Crimes 205.
15. Jimmy
Jahangir Madan v. Mrs. Bolly Cariyappa Hindley, 2002 (1) Crimes 291.
16. A.
V. Murthy v. B. S. Nagabasavanna, 2002 (1) Crimes 306 (SC).
17. Ram
Kasyyap Chits Pvt. Ltd. Visakhapatnam v. Chinnam Krishna Murthy, 2002
(1)
Crimes 673.
18. Veera
Exports v. T. Kalavathy, AIR 2002 SC 38.
19. Veera
Exports v. T. Kalavathy, 2002 (1) Crimes 123 (SC).
IN
THE COURT OF.........................................
Complaint
No......................... of 200
In
the Matter of: -
AB.............................................................
Complainant
versus
CD....................................................................
Accused
APPLICATION FOR RECALLING
THE SUMMONING ORDER DATED ........................ ON BEHALF OF
ACCUSED/APPLICANT
Most Respectfully Showeth: -
1.
That vide order
dated........................ this Hon’ble Court was pleased to issue process
to the applicant for an alleged offence under section 138 N. I. Act, 1881.
2.
That the said order of
summoning the applicant as an accused is bad in law on the following amongst
other grounds and is liable to be recalled: -
GROUNDS
a.
Because the complaint is
barred by limitation as per record produced by the Complainant, the bank’s
intimation/advise regarding return of cheque is dated........................
and the notice under section 138 N. I. Act was to be given within 15 days from
................................................ but the alleged notice is
purported to be dated................................................ and was
sent on........................ which on the face of it is beyond the
prescribed period of limitation provided under section 138 N. I. Act and as such
the Complaint is incompetent and liable to be dismissed on this ground alone.
b.
Because a perusal of the
Complaint would show that there is no allegation whatsoever as to on what date
the alleged notice dated ........................ was allegedly delivered to
the applicant and when the cause of action arose to the complainant for filing
the complaint, in the absence of it is settled law that cause of action for
maintaining a Complaint under section 138 N. I. Act, arises on the failure of
the addressee to pay the demanded amount within 15 days from the receipt of the
notice. In this case admittedly no notice was ever served upon the applicant.
c.
Because the Complainant is
alleged to have sent the alleged notice on two addresses: -
(1) .......................
(2) .......................
The
Complainant have however filed one envelope addressed at address No. 1 stated
above, and which contains a remark "Refused"
dated......................... It is pertinent to point out that the said
envelope does not contain any Postal Stamp of any post office which shows that
the envelope filed with the complaint is manipulated one and the envelope sent
to post office has been replaced by the envelope filed in the Complaint and the
Complainant is guilty of an offence of perjury for which the applicant reserves
right to file an application under section 340 Cr. P. C. relating thereto.
d.
Because the alleged notice
dated........................ is purported to have been sent
on........................ at the address ................................................
and is purported to have been refused en.......................... However the
Complainant has not examined anyone from the Postal Department to prove that it
was refused by the addressee. It is respectfully submitted that the applicant
is not residing at the address................................................
at which address there are number of shops and it is not the exclusive address
of the applicant place of business.
e.
Because neither in the
Complaint nor in the statement of the complainant it has been averred or stated
as to what was the fate of the alleged notice said to have been sent at the
address
f.
Because there is not an iota
of evidence of the Complainant being partner of applicant which assertion is
falsified from the very fact that the alleged cheque itself shows that the
applicant was sole proprietor of the firm and the cheque in question was
without consideration whatsoever. In this connection it is submitted that the
Complainant who used to visit the applicant frequently. During one such visit,
when the applicant needed money urgently and the closing hour of the bank was
nearby, the applicant hurriedly signed a cheque and gave it to the Complainant
who offered to get the same encashed by going to the bank. The Complainant came
back within 15 minutes and handed over the
cash................................................ to the applicant. It now
transpires that he retained the cheque fraudulently and dishonestly by filling
it up of the sum filed by him and has now filed the present Complaint for
dishonest gain.
3.
That this Hon’ble Court passed the summoning order without taking into the
aforesaid important facts which go into the root of the matter and ning order
is bad in law far it does not give any reasons for coming to the prima facie that an offence under
Section 138 N. I. Act had been made out.
PRAYER
It
is therefore prayed that this Hon’ble Court may be pleased to recall summoning
order dated......................... and drop the proceedings against applicant.
This
Hon’ble Court may be pleased to pass such further order(s) as ma complete
justice on the facts and circumstances of the case.
Applicant/
Accused
Through
Advocate
Place:................
Dated:.................
IMPORTANT NOTE
CHANGES MADE BY
THE NEGOTIABLE INSTRUMENTS
(AMENDMENT AND
MISCELLANEOUS PROVISIONS)
ACT, 2002
WITH
EFFECT FROM 17. 12. 2002
(1)
The period of notice by the
payee to the drawer has been increased from fifteen to thirty days. (Section
138)
(2)
Punishment prescribed under
the Act has been increased from one year to two ye (Section 138)
(3)
Person nominated as a
director of a company by virtue of his holding any office employment in the
Central Government or State Government or a financial cor ration owned or
controlled by the Central Government or the State Government, the case may be,
shall not be liable for prosecution under Section 141 of the (Section 141)
(4)
Discretion has been vested
in court to waive period of one month for taking cog zance of the case under
the Act, if complainant satisfies the court that he had su dent cause for not
making a complaint within such period. (Section 142)
By the Amendment
Act 2002
Sections 143 to 147 have
been inserted to provide for—
(a) Summary
trial of the cases with a view to speed up disposal of cases and the Mar trying
an offence empowered to pass sentence of imprisonment for a ter ing one year and amount of fine
excreding five thousand rupees; (Sec
(b) Procedure
for service of summons to the accused or witness by the post or by such courier
services as are approved by a Court of. 144)
(c) Evidence
of the complainant on affidavit and on application of summon and examine any
person giving evidence on affidless. tained therein; (Section 145),
(d) Bank’s
slip or memo prima facie evidence of
fact of dishonour of cheque unless and until such fact is disproved; (Section
146)
(e) Offence
under the Act compoundable; (Section 147)
**********
[CD1]COMPLAINT UNDER SECTIONS 138 AND 142 OF THE NEGOTIABLE INSTRUMENTS
ACT
0 Comments
Thank you for your response. It will help us to improve in the future.