Section 138 of Negotiable Instruments Act, 1881 (138 Ni Act) - Explained

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Section 138 of Negotiable Instruments Act, 1881

The Negotiable Instruments Act, 1881, is a critical piece of legislation in India that governs financial transactions involving negotiable instruments such as cheques, bills of exchange, and promissory notes. Section 138 of the Negotiable Instruments Act (138 NI Act) holds a significant position within this framework, primarily addressing the dishonor of cheques due to insufficient funds in the drawer's account. The introduction of Section 138 NI Act was a pivotal move aimed at instilling faith in the efficacy of banking operations and ensuring credibility in transactions involving negotiable instruments. 

Section 138 NI Act (Section 138 of Negotiable Instruments Act, 1881) specifies that if a cheque drawn by a person for the discharge of any liability is returned by the bank unpaid due to the inadequacy of funds or the absence of an agreement with the bank for an overdraft, the drawer is deemed to have committed an offense. This offense under the 138 NI Act is punishable by imprisonment, a fine, or both, thereby underscoring the seriousness of the act of issuing a cheque without ensuring adequate funds in the account. 

The provision of Section 138 NI Act serves as a deterrent against the recklessness of issuing cheques without sufficient balance, thereby reinforcing the reliability of cheques as a financial instrument. The 138 NI Act not only protects the payee but also maintains the trust and integrity of business transactions. This is crucial in a growing economy where transactions are increasingly reliant on quick and reliable financial mechanisms.

The legal recourse provided by Section 138 NI Act involves a statutory notice to be sent by the payee to the drawer within thirty days of receiving the 'cheque return memo' from the bank. If the drawer fails to make the payment within fifteen days of receiving the notice, the payee has the right to file a complaint under the 138 NI Act within one month. This swift legal framework aims to ensure that justice is not delayed for the aggrieved party.

Moreover, the 138 NI Act encompasses provisions for interim compensation to the complainant, highlighting the legislation's focus on providing relief to the victim of the cheque bounce at the earliest. The introduction of such measures under the 138 NI Act reflects the law's adaptability to the needs of the commercial world, ensuring that the credibility of negotiable instruments like cheques is upheld.

In essence, Section 138 of the Negotiable Instruments Act is a testament to the legal system's commitment to safeguarding the interests of individuals and businesses engaged in financial transactions. By penalizing the act of issuing cheques without sufficient funds, the 138 NI Act plays a pivotal role in promoting financial discipline and trustworthiness. The importance of the 138 NI Act in the contemporary business landscape cannot be overstated, as it significantly contributes to the security and efficiency of financial transactions.

Section 138 of Negotiable Instruments Act, 1881 (138 Ni Act)

What is Section 138 of Negotiable Instruments Act, 1881 (138 Ni Act)?

Section 138 of the Negotiable Instruments Act, 1881, deals with the dishonor of cheque for insufficiency, etc., of funds in the account. The text of Section 138, is as follows:

Dishonour of cheque for insufficiency, etc., of funds in the account.—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.

Explanation of Section 138 of Negotiable Instruments Act, 1881 (138 Ni Act) 

Section 138 of the Negotiable Instruments Act, 1881 (NI Act), delineates the legal framework and consequences surrounding the dishonour of cheques due to insufficient funds or the cheque amount exceeding the pre-arranged overdraft limit with the bank. This provision is instrumental in maintaining the credibility of cheques as a financial instrument for transactions and obligations. Here is a detailed explanation:

Legal Premise and Objective:

The essence of Section 138 is to penalize the act of issuing a cheque without sufficient funds in the account, ensuring that such cheques are honored by the drawer to uphold the trust in financial transactions. It instills a sense of responsibility in individuals or entities issuing cheques, making them aware of the legal implications of their actions if the cheque gets dishonored.

Conditions for Application of Section 138:

For the section to be applicable, certain conditions must be met:

The application of Section 138 of the Negotiable Instruments Act, 1881, hinges on specific conditions being met. These conditions are critical to establishing the liability of the drawer of a cheque that has been dishonoured due to insufficiency of funds or exceeding the amount arranged to be paid from the account.

Presentation of the Cheque: The cheque must be presented to the bank for payment within six months from the date on which it was drawn or within the period of its validity, whichever is earlier. This condition ensures the prompt action in the realization of the cheque and addresses the issue of stale cheques.

Dishonour of the Cheque: The cheque is returned by the bank unpaid. This could be due to insufficient funds in the drawer's account to cover the cheque amount or because the amount exceeds the limit of the overdraft (if any) agreed upon with the bank.

Notification of Dishonour to the Drawer: Upon dishonour of the cheque, the payee (or the holder in due course) must notify the drawer of the cheque about its dishonour. This notification must be in the form of a written notice, demanding the payment of the cheque amount.

Time Frame for Notice: This notice must be sent to the drawer within thirty days from the date of receiving the information from the bank regarding the return of the cheque as unpaid.

Failure to Make Payment: After receiving the notice of dishonour, the drawer of the cheque is given a grace period to rectify the situation. The drawer must make the payment of the said amount of money to the payee or to the holder in due course of the cheque within fifteen days from the receipt of the notice.

Legally Enforceable Debt or Liability: The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability which is legally enforceable. The nature of the debt or liability must be such that it is recognized by law as being due and payable.

Failure to Comply: If the drawer fails to make the payment within the fifteen-day grace period after receiving the notice of dishonour, it is considered an offence under Section 138. The drawer is then liable to be prosecuted under the law and may face penalties including imprisonment, fine, or both. The penalty can be 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.

These conditions collectively ensure that the provisions of Section 138 are applied judiciously, providing a remedy to the payee while also giving an opportunity to the drawer to make good on their payment obligation.

138 Ni Act punishment

Under Section 138 of the Negotiable Instruments Act, 1881, the offence and penalties associated with the dishonour of a cheque for insufficiency of funds or for exceeding the arranged amount with the bank are clearly defined. This provision aims to ensure the reliability and credibility of cheques as a financial instrument. Here's a breakdown of the offence and the penalties for it:

If the drawer fails to fulfill the obligation of payment within the stipulated fifteen days after receiving the notice of dishonour, the following penalties can be imposed:

  • Imprisonment: The drawer can be punished with imprisonment for a term which may extend to two years.
  • Fine: A fine can be imposed which may extend to twice the amount of the cheque.
  • Both: In some cases, the court may decide to impose both imprisonment and fine.

These penalties serve as a deterrent against issuing cheques without ensuring sufficient funds in the account. It's important to note that these consequences come into play only when the specific conditions outlined in Section 138 are met, ensuring that there's a fair opportunity for the drawer to rectify the mistake of cheque bouncing due to insufficient funds or any other mentioned reason. The provision underlines the importance of financial responsibility and integrity in transactions involving cheques.

While the intention of the drawer at the time of issuing the cheque is not directly relevant for the applicability of Section 138, repeated offences or fraudulent intentions can influence the severity of the penalties imposed.

138 Ni Act Procedure

The procedure under Section 138 of the Negotiable Instruments Act, 1881, for the dishonour of a cheque involves several steps, starting from the cheque's return by the bank to the initiation of legal proceedings against the drawer. The objective is to ensure a streamlined process for the recovery of the cheque amount and to penalize the defaulter. Here is an outline of the typical procedure:

1. Cheque Presentation:

The payee (the person to whom the cheque is issued) presents the cheque to the bank for payment within its validity period, which is six months from the date on the cheque or within the period of its validity, whichever is earlier.

2. Cheque Dishonour:

If the bank returns the cheque unpaid due to insufficient funds in the drawer's (the person who issued the cheque) account or because the amount exceeds the arranged payment limit with the bank, the payee is notified of the dishonour.

3. Notice of Dishonour to Drawer:

Upon receiving information about the dishonour, the payee or the holder in due course must send a written notice to the drawer within 30 days of receiving the dishonour information. This notice should demand payment of the cheque amount.

4. Drawer’s Opportunity to Make Payment:

The drawer has 15 days from the receipt of the notice to make the payment of the said amount to the payee or the holder in due course.

5. Initiation of Legal Proceedings:

If the drawer fails to make the payment within 15 days of receiving the notice, the payee or holder in due course can initiate legal proceedings against the drawer. The complaint must be filed within 30 days of the expiry of the 15-day period given to the drawer to settle the payment.

6. Jurisdiction:

The complaint can be filed in any of the following places:

  • The court within whose local jurisdiction the cheque was presented to the bank.
  • The court within whose local jurisdiction the cheque is drawn.
  • The court within whose local jurisdiction the payee or holder in due course maintains the account.

7. Court Proceedings:

The court will then follow its procedure to summon the drawer, hear the case, and determine if the offence under Section 138 has been committed. If found guilty, the court may impose penalties, including imprisonment, fine, or both.

8. Evidence and Defence:

The drawer has the opportunity to present evidence to prove that the cheque was not issued for the discharge of a legally enforceable debt or liability or any other defense permissible under the law.

This procedural framework under Section 138 of the Negotiable Instruments Act ensures that there is a mechanism to address and penalize cheque dishonour while also providing the drawer an opportunity to settle the matter without facing legal consequences.

138 Ni act civil or criminal

Section 138 of the Negotiable Instruments Act, 1881, pertains to the dishonor of a cheque for insufficiency of funds in the drawer's account or if it exceeds the amount arranged to be paid from that account. This section 138 Ni Act deals with a criminal offence, not a civil matter. Under Section 138, the dishonor of a cheque can lead to criminal prosecution, where the drawer of the dishonored cheque can be penalized with imprisonment for up to two years or with a fine which may extend to twice the amount of the cheque, or with both.

The provision was inserted into the Act to enhance the credibility of cheques and to ensure that such negotiable instruments are honored by the drawers. It serves as a strong deterrent against issuing cheques without sufficient funds in the account. Despite being a part of a legislation that primarily deals with commercial and financial instruments (thus having a civil law orientation), the consequences under Section 138 are criminal in nature.

However, it's important to note that the aggrieved party (payee) also has the option to pursue civil remedies to recover the cheque amount, alongside or independently of the criminal proceedings under Section 138. This dual nature of remedy allows for both compensation (through civil action) and punishment (through criminal prosecution) in cases of cheque dishonour.

138 Ni act limitation period

The limitation period for taking action under Section 138 of the Negotiable Instruments Act, 1881, for the dishonor of a cheque is specified under Section 142 of the same Act. As per the legal provisions, the complaint must be filed within one month from the date on which the cause of action arises.

The cause of action under Section 138 arises under the following circumstances:

Presentation of the cheque to the bank within six months from the date on which it is drawn or within the period of its validity, whichever is earlier.

Issuance of a written notice by the payee or the holder in due course to the drawer of the cheque demanding payment of the cheque amount, within 30 days of receiving information from the bank regarding the cheque's return unpaid.

Failure of the drawer to make payment to the payee or the holder in due course within 15 days of receiving the said notice.

Thus, the limitation period for filing a complaint under Section 138 starts from the expiry of the 15 days given to the drawer to make the payment after receiving the notice. This means the aggrieved party has one month from the end of this 15-day period to file the complaint. However, recent amendments and legal interpretations have provided some flexibility regarding the strictness of these timelines under certain conditions, aiming for justice and fairness in proceedings.

As legal procedures and interpretations can evolve, it's always recommended to consult a legal professional for the most current advice and to ensure compliance with all legal requirements.

138 ni act court fees

The court fees for filing a complaint under Section 138 of the Negotiable Instruments Act, 1881, in India can vary from one state to another because court fees are governed by state laws and regulations. Therefore, it's essential to refer to the specific state's Court Fees Act or schedule for the precise amount. Additionally, court fees may be updated or revised from time to time, so it's advisable to check the most current fee structure.

Generally, the court fee for filing a cheque bounce case under Section 138 of the NI Act is based on the amount for which the cheque was issued (i.e., the cheque amount). The fee could be a fixed amount for cases involving smaller cheque amounts, and it may increase proportionally with the cheque amount for larger sums. In some jurisdictions, there may also be a cap on the maximum court fee payable regardless of the cheque amount.

To file a complaint under Section 138, the complainant (payee or holder in due course) typically needs to submit the court fee along with the complaint petition to the appropriate magistrate's court. The process usually involves purchasing court fee stamps of the requisite value or paying the fee through other accepted modes of payment as per the court's regulations.

For the exact court fee applicable to a Section 138 NI Act case in a particular state or territory, it's recommended to consult the local court's registry, a legal practitioner, or the official website of the judiciary or state government where the case is to be filed. This will ensure compliance with the latest fee requirements and avoid any procedural delays or issues with the filing of the complaint.

138 ni act limitation

The limitation period for initiating a complaint under Section 138 of the Negotiable Instruments Act, 1881, is closely governed by the legal provisions outlined within the Act itself, specifically under Section 142(b), which has been subject to amendments to ensure clarity and effectiveness in its enforcement.

As per the latest amendment, the limitation period for filing a complaint under Section 138 of the NI Act is as follows:

  • The cheque should be presented to the bank within six months from the date on which it is drawn or within the period of its validity, whichever is earlier.
  • In case of dishonor, the payee or holder in due course must send a demand notice to the drawer within 30 days of receiving the cheque return memo from the bank.
  • The drawer has 15 days from the receipt of the notice to make the payment.
  • If the drawer fails to make the payment within 15 days of receiving the notice, the payee must file the complaint within 30 days from the expiry of this 15-day period.

Therefore, the effective limitation period from the date of cheque dishonor to the filing of the complaint under Section 138 can be summed up as follows:

  • 6 months for presenting the cheque + 30 days for sending notice + 15 days for drawer to make payment + 30 days to file the complaint = Total duration from cheque dishonor to the final date by which the complaint should be filed.

It is critical to observe these timelines meticulously to ensure the complaint is legally maintainable. Not adhering to these timelines can result in the dismissal of the complaint due to it being time-barred. Always consult with a legal professional for guidance specific to your situation, as legal interpretations and procedures may vary.

138 ni act jurisdiction

Jurisdiction in cases under Section 138 of the Negotiable Instruments Act, 1881 (NI Act), which deals with the dishonor of cheques for insufficiency of funds in the account, is a critical aspect and has evolved through various legal interpretations and amendments. Jurisdiction refers to the official power to make legal decisions and judgments, and in the context of Section 138, it pertains to the competence of a court to hear and decide cases of cheque dishonor.

Key Points on Jurisdiction for Section 138 of the NI Act:

Supreme Court Clarification: The jurisdiction issue in cheque bounce cases has seen significant clarifications through Supreme Court rulings. One landmark decision came in the case of Dashrath Rupsingh Rathod vs. State of Maharashtra & Anr (2014), which held that the cheque dishonor case can only be initiated in the court within whose local jurisdiction the bank branch of the payee, where the cheque is delivered for collection through the account, is situated.

Amendment to the NI Act: Following the difficulties posed by the Dashrath Rupsingh Rathod judgment on the practicality of prosecuting cheque bounce cases, the Indian government amended the Negotiable Instruments Act in 2015. The amendment, specifically Section 142(2), aimed to streamline the jurisdictional issues and provide relief to the complainant by allowing cases to be filed in the court within whose jurisdiction the bank branch of the drawer (the person who wrote the cheque) is located.

After the 2015 amendment, the position is that a complaint under Section 138 of the NI Act can be filed in any of the following courts:

  • A court within whose jurisdiction the cheque is drawn (i.e., the drawer’s bank branch).
  • A court within whose jurisdiction the cheque is presented to the bank (i.e., the payee’s or holder in due course’s bank branch).
  • A court within whose jurisdiction the payee or holder in due course initiates the cheque bounce proceedings by making a demand for payment by sending a legal notice to the drawer.

The amendment essentially provides a choice to the complainant to file the case in a jurisdiction that is convenient to them, within the options provided by law, making it easier for the aggrieved party to pursue legal action against the drawer of the bounced cheque.

Given the complexities and potential changes in the legal framework, it's crucial for individuals dealing with cheque bounce cases to seek legal advice to understand the current jurisdictional rules applicable to their specific case. A legal expert can provide guidance on the most strategic location to file the complaint based on the facts of the case and the prevailing legal interpretations.

Understanding the jurisdictional aspects is critical for effectively managing and pursuing legal action in cases of cheque dishonor under Section 138 of the NI Act. Given the potential for legislative changes and varying interpretations by courts, staying informed through legal consultation is advisable.

138 Ni Act Acquittal Cases

Cases of acquittal under Section 138 of the Negotiable Instruments Act, 1881, often involve complex legal arguments and hinge on the specifics of each case, including the evidence presented, the interpretation of the law, and procedural aspects. Acquittal in a Section 138 case means that the court has found the accused not guilty of the offence of cheque dishonour due to insufficient funds or the amount exceeding the arrangement with the bank. Here are some scenarios and principles that might lead to acquittal in such cases:

Insufficient Evidence

Lack of Proof of Legally Enforceable Debt or Liability: For a conviction under Section 138, the complainant must prove that the cheque was issued for the discharge, in whole or in part, of any debt or other liability. If the court finds that the cheque was not issued for a legally enforceable debt or liability, it may acquit the accused.

Failure to Prove Delivery of Statutory Notice: The complainant must send a legal notice to the drawer within 30 days of receiving information from the bank regarding the cheque's return. If this notice is not sent as per legal requirements, or there is no proof of the drawer receiving the notice, the court may acquit the accused.

Procedural Discrepancies

Improper Presentation of Cheque: If the cheque was not 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, it can lead to acquittal.

Non-compliance with Legal Formalities: Any failure in following the strict procedural formalities required for a Section 138 case, such as improper filing of the complaint, jurisdiction issues, or not adhering to timelines for legal notices and payment demands, can result in acquittal.

Defense by the Accused

Existence of a Dispute Over the Debt: If the accused can successfully prove that there was a genuine dispute over the debt or liability for which the cheque was issued, the court may consider it grounds for acquittal.

Coercion or Fraud: If the accused proves that the cheque was obtained by coercion, threat, or under fraudulent circumstances, the court may acquit the accused.

Account Closure: If the account was closed for valid reasons not related to fraud or intent to deceive before the cheque was presented for payment, it might lead to acquittal.

Stop Payment Instructions: If the drawer had issued stop payment instructions to the bank due to reasons such as non-delivery of goods or services or breach of agreement by the payee, and can substantiate those reasons, it may lead to acquittal.

Interpretation of Law

Courts also consider precedents and legal interpretations that may favour the accused. Changes in legal provisions or interpretations over time can influence the outcome of such cases.

Each acquittal case under Section 138 of the NI Act is unique and depends on the judicial examination of the facts presented, adherence to procedural requirements, and the legal arguments made by both sides. It's crucial for parties involved in such cases to seek competent legal advice to navigate the complexities of the law effectively.

138 Ni Act Appeal Against Conviction

Under the Negotiable Instruments Act, 1881, specifically Section 138, which deals with the dishonor of cheques for insufficiency of funds in the account or because it exceeds the amount arranged to be paid from that account, a conviction can have significant legal and financial implications for the accused. However, the legal framework provides a mechanism to challenge a conviction under Section 138 through an appeal process. Here's an overview of appealing against a conviction under Section 138 of the NI Act:

1. Grounds for Appeal:

An appeal against a conviction under Section 138 can be based on various grounds, including but not limited to procedural errors, incorrect interpretation of facts, errors in the application of law, or new evidence that could potentially exonerate the accused.

2. Time Limit for Filing an Appeal:

The time limit for filing an appeal against a conviction in a Section 138 NI Act case is usually stipulated by the law under which the appeal is being filed. For criminal cases, the period is generally 30 days from the date of the order or judgment. However, courts sometimes have the discretion to allow appeals even after the expiry of the stipulated period, if sufficient cause is shown for the delay.

3. Appellate Courts:

An appeal against the conviction by a Magistrate's court typically lies with the Sessions Court. If the conviction is by a Sessions Court, the appeal would generally be to the High Court.

4. Procedure for Filing an Appeal:

The process involves filing a formal appeal in the appropriate appellate court, along with all relevant documents, including a copy of the judgment and grounds for appeal. The appellant (the person appealing the conviction) is required to serve a copy of the appeal to the opposite party (the respondent).

5. Stay on Conviction:

Upon filing an appeal, the appellant can also apply for a stay on the conviction, which, if granted, temporarily suspends the execution of the sentence until the appeal is decided. The decision to grant a stay depends on the merits of the appeal as perceived by the appellate court.

6. Hearing of the Appeal:

The appellate court will then hear the appeal, reviewing the case afresh based on the grounds cited in the appeal, the evidence presented, and the legal arguments made by both parties. The appellate court has the power to uphold, reverse, or modify the lower court's decision or to remand the case back to the lower court for a fresh trial or hearing.

7. Further Appeal:

Depending on the outcome and the specific legal jurisdiction, further appeal against the appellate court's decision might be possible to a higher court, including the Supreme Court, on substantial questions of law.

Appealing against a conviction under Section 138 of the NI Act is a legal right, but it requires careful consideration and preparation, including a strong legal strategy and understanding of the relevant laws and precedents. It's advisable for individuals seeking to appeal a conviction to consult with legal professionals who are experienced in handling such cases to increase the chances of a favorable outcome.

138 Ni act appeal against acquittal

Appealing against an acquittal under Section 138 of the Negotiable Instruments Act, 1881, is a legal recourse available to the complainant if they believe that the acquittal was a result of a legal error, misinterpretation of the law, or overlooking of crucial evidence. The process and provisions for appealing an acquittal in a cheque bounce case are primarily governed by the provisions of the Code of Criminal Procedure, 1973 (CrPC). Here's an overview of how to appeal against an acquittal under Section 138 of the NI Act:

Legal Basis for Appeal

Appeal Under Section 378 of the CrPC: Section 378 of the CrPC allows the State Government to appeal against an order of acquittal in certain circumstances. The complainant can request the State Government or its delegate (usually the Public Prosecutor) to file an appeal in the High Court against the acquittal. However, direct appeal rights to the complainant against acquittal in cheque bounce cases might be limited, necessitating the involvement of the State's permission or, in certain cases, direct appeal under specific High Court rules.

Special Leave to Appeal: Apart from the provision under the CrPC, the complainant has the option to seek Special Leave to Appeal in the Supreme Court of India under Article 136 of the Constitution of India if the case involves a substantial question of law or gross miscarriage of justice.

Process of Appeal

Filing of Appeal: The appeal against acquittal must be filed within the prescribed time limit, which is usually 90 days from the date of the order of acquittal, but this can vary based on the court's jurisdiction and specific circumstances of the case. The appeal is to be filed in the competent High Court having jurisdiction over the matter.

Grounds of Appeal: The appeal must clearly state the grounds on which it is being made. This includes pointing out errors in the judgment, misinterpretation of the law, overlooking of material evidence, or any other grounds that could influence the outcome of the case.

Submission of Evidence: While new evidence is generally not allowed in an appeal, the appellate court will review the evidence already presented during the trial. The appellant must convincingly argue that the evidence on record was sufficient to establish the guilt of the accused and that the trial court's conclusion to acquit was erroneous.

Hearing and Decision: Once the appeal is admitted, the High Court will conduct hearings where both parties can present their arguments. After considering the arguments and the evidence on record, the High Court can decide to dismiss the appeal, uphold the acquittal, or overturn the acquittal and convict the accused. The decision of the High Court is subject to further appeal in the Supreme Court if it involves a substantial question of law of general importance.

Important Considerations

Given the complexities involved in appealing against an acquittal, it is advisable to seek the assistance of a legal professional experienced in handling cheque bounce cases and appeals.

The appellant should be prepared for the additional costs and time that the appeal process may entail.

Before proceeding with an appeal, it's crucial to assess the chances of success based on the merits of the case and the grounds of appeal.

Appealing against an acquittal in a Section 138 NI Act case involves navigating complex legal procedures and requires a thorough understanding of the law and procedural rules. It's a recourse that should be pursued after careful consideration and legal consultation.

138 Ni act amendment

The Negotiable Instruments Act, 1881 (NI Act) has undergone several amendments to address the evolving nature of banking and commercial transactions, especially concerning the handling of cheque bounce cases under Section 138 of the Act. These amendments aim to strengthen the law regarding the dishonor of cheques and reduce the burden on the courts while ensuring justice to the complainant. Here is an overview of some significant amendments:

The Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002

One of the most substantial amendments came through this Act, which introduced several changes, including:

  • The amendment made provisions for the court to order the drawer of a bounced cheque to pay interim compensation to the complainant. This amount could be up to 20% of the cheque amount, which was to be paid within a specified period.
  • The amendment encouraged summary trials and mediation as ways to resolve disputes faster.

The Negotiable Instruments (Amendment) Act, 2015

The Negotiable Instruments (Amendment) Act, 2015, was a significant piece of legislation in India that amended the Negotiable Instruments Act, 1881. This amendment was primarily aimed at clarifying the jurisdictional issues related to cases of cheque dishonour under Section 138 of the Negotiable Instruments Act. Before the amendment, there was considerable confusion and legal debate over the appropriate jurisdiction for filing cases related to the dishonour of cheques, which often led to inconvenience for the payee or holder of the cheque.

Key Features of the Amendment:

Clarification on Jurisdiction: The 2015 amendment clarified that the jurisdiction for initiating cases of cheque dishonour lies with the courts within whose local limits the bank branch of the payee, where the payee presents the cheque for payment, is situated. This meant that legal proceedings could be initiated where the payee's bank branch is located, addressing a major issue of convenience for the complainant.

Provision for Interim Compensation: The amendment introduced Section 143A, allowing courts to order the drawer (the person who wrote the cheque) to pay interim compensation to the complainant. This interim compensation could be up to 20% of the cheque amount and had to be paid within 60 days of the order. This provision was introduced to provide relief to the complainant during the pendency of the proceedings.

Provision for Deposit in Case of Appeal: If the drawer of the cheque wanted to file an appeal against a conviction under Section 138, the amendment mandated that the appellant had to deposit a minimum of 20% of the fine or compensation awarded by the trial court. This amount is in addition to any interim compensation paid previously.

These changes aimed to streamline the process of handling cheque bounce cases, reduce the burden on the legal system by minimizing jurisdictional conflicts, and provide some financial relief to the complainant during the lengthy legal proceedings. The amendment sought to deter frivolous litigation and encourage the settlement of disputes related to cheque dishonour in a timely and efficient manner.

The 2015 amendment to the Negotiable Instruments Act was a step towards strengthening the legal framework dealing with financial transactions involving cheques and enhancing the trust and efficiency of the banking system by ensuring accountability and faster resolution of disputes.

The Negotiable Instruments (Amendment) Act, 2018

The Negotiable Instruments (Amendment) Act, 2018, further amended the original Negotiable Instruments Act, 1881, particularly focusing on addressing issues related to the dishonor of cheques and improving the efficacy of the resolution process. This amendment came after the 2015 amendment and aimed to strengthen the provisions related to the handling of cheque bounce cases, thereby instilling confidence among the business community and creditors. The 2018 amendment made notable changes regarding interim compensation and the handling of cases, significantly impacting the legal framework for cheque dishonour cases in India.

Key Features of the 2018 Amendment:

Interim Compensation: One of the landmark introductions by the 2018 amendment is Section 143A, which allows the court to order the drawer (the person who issued the cheque) to pay interim compensation to the complainant. This interim compensation can be up to 20% of the cheque amount. This provision is applicable to cases where the drawer pleads not guilty to the accusations. The interim compensation must be paid within 60 days of the court's order, and this period can be extended by another 30 days, providing a maximum of 90 days for the payment under specific conditions.

Deposit on Filing Appeal: The amendment introduced Section 148, wherein in the event of an appeal by the drawer against conviction under Section 138, the appellate court can order the appellant to deposit a minimum of 20% of the fine or compensation awarded by the trial court. This amount is in addition to any interim compensation that has already been paid. This provision aims to ensure that the complainant receives a portion of the compensation upfront, thus providing relief during the pendency of the appeal.

Recovery of the Amount: If the drawer is convicted in the case, the interim compensation paid may be recovered by adjusting the amount against the fine imposed by the court. If the drawer is acquitted, the court will direct the complainant to repay the interim compensation to the drawer, along with an interest rate determined by the Reserve Bank of India.

Impact of the 2018 Amendment:

Enhanced Security for the Complainant: By allowing for interim compensation, the amendment ensures that the complainant has financial security during the course of the legal proceedings, which can often be lengthy.

Deterring Frivolous Appeals: The requirement to deposit a significant percentage of the compensation/fine as a condition to file an appeal serves to deter frivolous appeals, ensuring that only genuine cases are taken up at the appellate level.

Speedy Resolution: The provisions for interim compensation and deposits are aimed at encouraging parties to settle disputes related to cheque dishonour more swiftly, thus reducing the burden on the judiciary.

The Negotiable Instruments (Amendment) Act, 2018, thus aimed at streamlining the handling of cheque bounce cases and providing relief to the payees of dishonoured cheques, while also ensuring that drawers are not unjustly penalized in cases where they might eventually be found not guilty.

138 Ni act account closed

The provision under Section 138 of the Negotiable Instruments Act, 1881 (NI Act), addresses the dishonor of cheques for insufficiency of funds in the account or because the amount of the cheque exceeds the arrangement made with the bank. A scenario where a cheque is dishonored because the account has been closed by the account holder is also covered under this section.

Implications of Cheque Bounce due to Account Closure:

Criminal Liability: When a cheque is returned due to the account being closed, it is considered as a cheque bounce due to insufficient funds. This scenario falls under the purview of Section 138 of the NI Act, making the drawer liable for criminal proceedings. The rationale is that by issuing a cheque while knowing that the account is closed, the drawer is intentionally attempting to defraud the payee.

Legal Procedure: The legal process begins with the payee sending a legal notice to the drawer within 30 days from the date of receiving the 'Cheque Return Memo' from the bank, demanding payment of the cheque amount. The drawer has 15 days from the receipt of the notice to make the payment. Failure to make the payment within this period can lead to the payee filing a criminal complaint against the drawer under Section 138 of the NI Act.

Penalties: On being found guilty under Section 138 for issuing a cheque from a closed account, the drawer can be subjected to:

  • Imprisonment for up to two years, and/or
  • A fine which may extend to twice the amount of the cheque.

Defense and Considerations:

Good Faith Effort: If the drawer can prove that the cheque was issued in good faith and without knowledge that the cheque would be dishonored due to the account being closed, it might serve as a defense. However, this is difficult to prove and typically does not absolve the drawer of liability under Section 138.

Mitigating Circumstances: Circumstances surrounding the account closure and the issuance of the cheque, such as bank errors or disputes over the quality of goods and services, might influence the legal outcome. These circumstances do not negate the offence but might affect the penalty or settlement terms.

Issuing a cheque against a closed account is considered a serious offence under the NI Act, reflecting a clear intent to deceive. It is advisable for individuals to ensure their accounts have sufficient funds or are active before issuing cheques to avoid legal complications and potential criminal charges under Section 138 of the NI Act.

Ni Act 138 Cases

When discussing judgments related to Section 138 of the Negotiable Instruments Act, 1881 (NI Act), it's important to remember that specific case law or judgments can vary widely based on the facts and circumstances of each case. However, there are landmark judgments that have shaped the interpretation and application of Section 138, influencing how cases of cheque dishonor due to insufficient funds are handled across India.

A few notable judgments related to Section 138 of the NI Act include:

1. M/S. SCM Creations v. Sanjay Agarwal (2015)

The judgment in the case of M/S. SCM Creations v. Sanjay Agarwal (2015) is a landmark decision by the Supreme Court of India that significantly impacted the interpretation and application of laws concerning the jurisdiction of cheque bounce cases under Section 138 of the Negotiable Instruments Act, 1881. This case was pivotal in resolving the confusion regarding the appropriate jurisdiction for filing complaints about cheque dishonour.

Background of the Case:

Prior to this judgment, there was considerable ambiguity regarding the correct jurisdiction for initiating legal action in cases where a cheque was dishonoured for insufficient funds. The ambiguity was mainly due to different interpretations of the provisions of the Negotiable Instruments Act, particularly concerning where the cause of action arises.

Issue Before the Court:

The primary issue before the Supreme Court was to determine the correct jurisdiction for filing complaints under Section 138 of the Negotiable Instruments Act. Specifically, the Court needed to decide whether the complaint should be filed in the jurisdiction where the cheque is presented for clearance or in the jurisdiction where the cheque is issued or where the payee or drawer resides.

Judgment:

The Supreme Court clarified that the jurisdiction for filing a cheque bounce case under Section 138 of the Negotiable Instruments Act lies within the court of the area where the bank branch of the payee or holder in due course (where the cheque is presented for clearance) is located. This was a significant departure from previous interpretations, which allowed for broader jurisdiction, including where the cheque was issued or where the drawer of the cheque resided.

Impact of the Judgment:

The judgment brought much-needed clarity on the issue of jurisdiction, which was a matter of considerable litigation. It helped reduce the confusion and multiple legal proceedings across different jurisdictions for the same cause of action.

By allowing the payee to file a case in the jurisdiction of their bank branch, the Supreme Court made it relatively easier for the complainant, who often had to travel to different cities or states where the drawer's bank was located.

This decision ensured consistency in the legal proceedings of cheque bounce cases, making the process more straightforward and less cumbersome for the judiciary to manage.

The M/S. SCM Creations v. Sanjay Agarwal judgment is considered a landmark because it established a clear rule for determining jurisdiction in cheque bounce cases, thus aiding in the efficient and effective handling of such cases under Section 138 of the Negotiable Instruments Act.

2. Dashrath Rupsingh Rathod v. State of Maharashtra & Anr (2014)

The judgment in the case of Dashrath Rupsingh Rathod v. State of Maharashtra & Anr (2014) is a significant ruling by the Supreme Court of India regarding the jurisdiction issues in cheque bounce cases under Section 138 of the Negotiable Instruments Act, 1881. This judgment overturned the earlier interpretations of jurisdiction for filing cases related to cheque dishonour, fundamentally altering the legal landscape surrounding these matters.

Background of the Case:

Before this judgment, there was considerable ambiguity and varying interpretations regarding the appropriate jurisdiction for initiating legal proceedings in cases of cheque dishonour. The ambiguity pertained to whether a complaint under Section 138 of the Negotiable Instruments Act could be filed in any jurisdiction where part of the cause of action occurred, including where the cheque was presented, where the cheque was drawn, or where the payee or drawer resided.

Issue Before the Court:

The core issue before the Supreme Court was to determine the correct jurisdiction for filing complaints under Section 138 of the Negotiable Instruments Act. The question was whether the jurisdiction lies with the court within whose area the bank, in which the cheque was deposited, is situated or whether it lies in any jurisdiction where part of the transaction took place.

Judgment:

The Supreme Court in Dashrath Rupsingh Rathod's case ruled that the jurisdiction for filing a cheque bounce case under Section 138 of the Negotiable Instruments Act is restricted to the courts within whose local jurisdiction the offence was committed, which is where the bank of the payee/holder in due course is situated and where the cheque is dishonoured.

This ruling marked a significant shift from the previous position, which allowed for filing the case in various jurisdictions, creating confusion and inconvenience. The judgment aimed to reduce harassment to the payee of a dishonoured cheque by restricting the jurisdiction to a specific location, thereby limiting the drawer's ability to engage in jurisdictional manipulation.

Impact of the Judgment:

This landmark decision provided a clear directive on jurisdiction, resolving widespread confusion and inconsistency in the legal treatment of cheque bounce cases across India.

The ruling was seen as a measure to protect the interests of the complainant (payee of the cheque) by limiting the jurisdiction to a specific and predictable location.

The judgment brought legal certainty to the issue of jurisdiction in cheque bounce cases, thereby helping in the smoother functioning of judicial processes related to the Negotiable Instruments Act.

Dashrath Rupsingh Rathod v. State of Maharashtra & Anr (2014) is considered a landmark judgment because it established a definitive rule regarding jurisdiction in cheque bounce cases under Section 138, which has had far-reaching implications on the judicial handling of such matters.

3. Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities Ltd. (2000)

The case of Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities Ltd. (2000) dealt with issues related to jurisdiction in cases of cheque dishonor under Section 138 of the Negotiable Instruments Act, 1881 (NI Act). This case is notable for addressing where the legal proceedings can be initiated if a cheque gets dishonored.

Key Points from the Judgment:

Jurisdiction Issues: The primary question before the court was regarding the appropriate jurisdiction to initiate proceedings under Section 138 of the NI Act. The specific issue was whether the complainant could choose any jurisdiction where part of the cause of action arose, including where the cheque was presented, dishonored, or where notice in consequence of dishonor was given.

Interpretation of Legal Provisions: The court interpreted the provisions related to jurisdiction in the context of the NI Act. It emphasized that the intent of the legislation was to ensure that the complainant should not face hardships by filing cases only in the jurisdiction where the drawer's bank was located.

Outcome of the Case:

The judgment in this case played a crucial role in understanding the jurisdictional aspects of cheque dishonor cases under Section 138 of the NI Act. However, it's essential to note that the legal landscape regarding jurisdiction in cheque dishonor cases has evolved over time through subsequent judgments and amendments to the NI Act.

Subsequent Developments:

The Supreme Court's judgment in Dashrath Rupsingh Rathod v. State of Maharashtra & Anr (2014) significantly overruled the precedents by holding that the place of jurisdiction for filing cheque dishonor cases under Section 138 is strictly where the branch of the bank on which the cheque is drawn is located. This ruling aimed at removing ambiguities and ensuring consistency in the adjudication of such cases.

Furthermore, the Negotiable Instruments (Amendment) Act, 2015, was enacted to amend the original NI Act and provide clarity on jurisdictional issues. It specifically stated that the jurisdiction for offence under Section 138 lies with any court within whose local jurisdiction the bank branch of the payee or holder in due course (where the payee or holder maintains an account) is situated, or where the cheque is presented if it is presented directly to the drawee bank and not through an account. This amendment aimed to address the practical difficulties faced by the payee or the lender and to ensure justice is accessible and not denied due to procedural technicalities.

4. Rangappa v. Sri Mohan (2010)

In the case of Rangappa v. Sri Mohan (2010), the Supreme Court of India addressed important aspects related to the presumption of guilt in cases involving the dishonor of cheques under Section 138 of the Negotiable Instruments Act, 1881 (NI Act). This landmark judgment clarified and reinforced the statutory presumption in favor of the holder of the cheque.

Key Points from the Judgment:

Statutory Presumption: The Supreme Court highlighted that once the execution of the cheque is admitted or established, Section 139 of the NI Act mandates a presumption in favor of the holder. This presumption is that the cheque was issued for the discharge, in whole or in part, of any debt or other liability.

Burden of Proof: The court clarified that the onus shifts to the accused to rebut the presumption. The accused must lead evidence to show that the cheque was not issued for the discharge of a debt or liability. The standard of proof for rebuttal does not necessarily have to meet the stringent test of "beyond a reasonable doubt" but should be "preponderance of probabilities".

Nature of Rebuttal Evidence: The judgment elaborated that the accused could use any evidence – oral, documentary, or circumstantial – to rebut the presumption. The court is to consider all the evidence on record, including the accused’s evidence, to determine whether the presumption has been successfully rebutted.

Role of the Complainant: The complainant is not required to adduce evidence to prove the existence of the debt or liability unless the accused successfully rebuts the presumption. If the accused fails to discharge the burden of rebuttal, the presumption stands, and the accused can be convicted under Section 138 of the NI Act.

Significance of the Judgment:

This judgment is significant for clarifying the procedural aspects and the dynamics of the burden of proof in cheque dishonor cases under Section 138 of the NI Act. It underscores the protective aspect of the statute towards the payees of cheques and the seriousness with which cheque dishonor is to be treated in the interest of commerce. Rangappa v. Sri Mohan has been a cornerstone judgment that helps in ensuring the credibility and integrity of negotiable instruments like cheques in financial transactions.

5. Vinod Tanna & Anr v. Zaher Siddiqui (2002)

In the case of Vinod Tanna & Anr v. Zaher Siddiqui (2002), the Supreme Court of India addressed issues related to the Negotiable Instruments Act, particularly focusing on the procedural aspects and the jurisdiction for filing complaints under Section 138 of the Act. This case is often cited in discussions about the legal processes involved in the handling of cases of cheque dishonour.

The core issue in the Vinod Tanna & Anr v. Zaher Siddiqui case revolved around the appropriate jurisdiction where a complaint under Section 138 of the Negotiable Instruments Act can be filed. The question of jurisdiction is crucial because it determines the place (i.e., the specific court) where the complainant can initiate legal proceedings against the drawer of a dishonoured cheque.

The Supreme Court's judgement in this case helped clarify the procedural nuances related to the filing of Section 138 cases. It provided guidance on interpreting the legal provisions concerning the jurisdiction for lodging complaints in cheque bounce cases. The ruling emphasized that the place where the cheque is dishonoured by the bank can be considered the appropriate jurisdiction for filing the complaint. This interpretation aimed to simplify the legal process for the payee or the holder in due course, enabling them to seek redress in a more accessible manner.

Cases like Vinod Tanna & Anr v. Zaher Siddiqui are significant as they help define the legal landscape regarding cheque dishonour, ensuring clarity in the application of the law. They contribute to the evolving jurisprudence on negotiable instruments in India, addressing practical challenges faced by litigants and thereby facilitating smoother legal proceedings in cheque bounce cases.

It's important to note that legal judgments and interpretations can be complex, and the specifics of each case matter greatly. For detailed legal advice or analysis, consulting a legal professional who can provide guidance based on the most current law and case law is recommended.

138 ni act bail application format

When applying for bail in a case related to Section 138 of the Negotiable Instruments Act (NI Act), it's important to draft a bail application that clearly outlines the facts of the case, the applicant's grounds for seeking bail, and any relevant legal provisions or precedents that support the request. Below is a general format for a bail application in a Section 138 NI Act case. Please note that this is a basic template and may need modifications to suit specific case details and legal requirements. Consulting a legal professional for personalized advice and document preparation is always recommended.

IN THE COURT OF THE HON'BLE JUDGE, [COURT NAME]

[COURT ADDRESS]
Criminal Misc. Bail Application No.: _______/20XX
U/S: 138 of the Negotiable Instruments Act, 1881

In the matter of:
[Your Name]
Applicant
-Versus-
[Complainant's Name]

Respondent

APPLICATION FOR GRANT OF BAIL UNDER SECTION 438 OF THE CODE OF CRIMINAL PROCEDURE, 1973 IN CONNECTION WITH [CASE NUMBER] OF [YEAR], UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881 PENDING IN THE COURT OF [COURT NAME], [LOCATION].

Respectfully Sheweth:

That the above-noted case is pending before this Hon'ble Court and the applicant is seeking bail in the said case.

That the applicant is a resident of [Your Address], and is a law-abiding citizen of India with no previous criminal record.

That the applicant has been falsely implicated in the present case due to [mention reason if any, like a misunderstanding, business dispute, etc.].

That the cheque amounting to [Amount] was issued on [Date], and it was dishonored due to [reason for dishonor, if necessary to mention, like insufficient funds, payment stopped by the drawer, etc.].

That the applicant has strong roots in the community and is not a flight risk. The applicant has a fixed place of residence at [Your Address] and is engaged in [Your Occupation/Profession].

That the applicant assures that he/she will comply with all conditions laid down by this Hon'ble Court and will appear at all times when required by the court.

That the applicant undertakes not to tamper with the evidence or influence the witnesses in any manner.

That the non-grant of bail would cause grave injustice and hardship to the applicant.

[Include any other points or legal arguments in support of your bail application]

PRAYER:

It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to grant bail to the applicant in connection with [Case Number] of [Year] under Section 138 of the Negotiable Instruments Act, 1881, on such terms and conditions as this Hon'ble Court may deem fit and proper.

Place: [Place]

Date: [Date]

Applicant
[Your Name]
Through
Advocate
[Advocate's Name and Details]

[Enclosures: List of documents attached with the bail application, if any]

Note: This format is a basic structure and must be tailored according to the specific facts of the case and legal requirements. Ensure all personal, case-related, and legal details are accurately included. Consulting with a lawyer for preparing and filing the application is strongly advised.

138 ni act complaint format

A complaint under Section 138 of the Negotiable Instruments Act, 1881, typically involves a legal document filed by the payee (or the holder in due course) of the cheque against the drawer (the person who wrote the cheque) when the cheque has been dishonored by the bank due to insufficient funds or for any other reason specified under the Act. Below is a basic format for a Section 138 NI Act complaint. Please note, legal documents should be prepared or reviewed by a legal professional to ensure they meet all legal requirements and are appropriate for your specific circumstances.

BEFORE THE COURT OF THE CHIEF JUDICIAL MAGISTRATE AT [Location/Court Name]

Complaint Case No.: ______ of [Year]

[Your Name (Complainant)]
Son/Daughter/Wife of [Father's/Husband's Name],
Residing at [Your Address],
[City, State, Postal Code],
Phone: [Your Phone Number],
Email: [Your Email Address].

Versus

[Drawer's Name (Accused)]
Son/Daughter/Wife of [Father's/Husband's Name],
Residing at [Drawer's Address],
[City, State, Postal Code],
Phone: [Drawer's Phone Number],
Email: [Drawer's Email Address].

COMPLAINT UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881

MOST RESPECTFULLY SHOWETH:

That the complainant is a [Your Occupation] and the accused is known to the complainant as [Explain how you know the accused, e.g., "a business associate"].

That in the course of business/transaction, the accused had issued a cheque bearing No. [Cheque Number], dated [Date], drawn on [Bank Name and Branch], for a sum of Rs. [Amount] in favor of the complainant as payment towards [Reason for Payment].

That the complainant presented the said cheque for encashment within its validity period to [Bank Name, Branch], on [Date of Presentation]. However, the cheque was returned unpaid by the bank with the remark [“Insufficient Funds”/“Account Closed”/other reason].

That subsequently, the complainant sent a legal notice to the accused on [Date of Notice], by registered post, demanding the payment of the said amount. Despite receiving the notice, the accused failed to make any payment towards the dishonored cheque within the stipulated time of 15 days from the receipt of the notice.

That the accused has thus committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

PRAYER:

It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to:
a. Take cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1881, against the accused.
b. Issue summons to the accused to face trial for the said offence.
c. Pass an order directing the accused to compensate the complainant for the amount of the cheque along with interest and legal costs incurred.

Place: [Your Location]
Date: [Date of Filing]

Complainant

[Your Signature]
[Your Name]
Verification:

I, [Your Name], the complainant, do hereby declare and verify under the solemn affirmation at [Location], on this [Date of Verification], that the contents of this complaint are true and correct to my knowledge and belief. No part of it is false, and nothing material has been concealed therein.

Verified at [Location] on this [Date]

Complainant

[Your Signature]

[Your Name]

This is a basic template and should be tailored to fit the specific facts of your case. It is crucial to consult with a legal professional to ensure that your complaint adheres to the requirements of the law and the court.

Conclusion

Section 138 of the NI Act is a critical legal provision that ensures the reliability of cheques as a mode of payment and financial commitment. By penalizing the issuance of cheques without sufficient funds, it reinforces the integrity of financial transactions. The procedural steps, from issuing a legal notice to filing a complaint, provide a structured mechanism for the aggrieved party to seek redressal, thereby upholding the trust in negotiable instruments like cheques.

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Barristery.in: Section 138 of Negotiable Instruments Act, 1881 (138 Ni Act) - Explained
Section 138 of Negotiable Instruments Act, 1881 (138 Ni Act) - Explained
Section 138 NI Act (Section 138 of Negotiable Instruments Act, 1881) specifies that if a cheque drawn by a person for the discharge of any liability i
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