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Negotiable instruments act, 1881

S. NAGESH versus SHOBHA S. ARADHYA

The learned Magistrate erred in taking cognizance of the respondent's complaint under Section 138 of the NI Act before the two-day delay in presentation was condoned; under the clear language of the proviso to Section 142(1)(b), the Court's satisfaction as to sufficient cause (and consequent condonation of delay) must precede taking cognizance, and therefore the complaint was quashed.

Source excerpt

  • Section 138 ni act
  • Section 142 ni act
  • Cognizance
  • Limitation
  • Condonation of delay
  • Magistrate jurisdiction
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Negotiable instruments act, 1881

SANKAR PADAM THAPA versus VIJAYKUMAR DINESHCHANDRA AGARWAL

A Trust is not a juristic person capable of suing or being sued in its own name for the purposes considered; only trustees operate and are liable for acts of the trust, and therefore a complaint under the NI Act is maintainable against the trustee/chairman who signed the cheque without the necessity of making the Trust an accused.

Source excerpt

  • Maintainability of complaint under ni act against trustee
  • Whether a trust is a juristic person or capable of suing or being sued
  • Vicarious liability under section 141, ni act
  • Joinder of necessary parties in ni act complaint
  • Liability of signatory of dishonoured cheque
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Negotiable instruments act, 1881

SANJABIJ TARI versus KISHORE S. BORCAR & ANR.

The Supreme Court held that once the execution of the cheque was admitted the statutory presumptions under Sections 118 and 139 of the NI Act arose; the respondent-accused failed to rebut those presumptions and did not produce independent evidence of the complainant's financial incapacity nor reply to the statutory notice; the High Court in revisional jurisdiction erred in upsetting concurrent factual findings of the Trial and Sessions Courts; the High Court's acceptance of the 'signed blank cheque for bank loan' defence was unbelievable; accordingly the High Court order dated 16.04.2009 was…

Source excerpt

  • Section 138 ni act
  • Presumptions under sections 118 and 139 ni act
  • Compounding of offences under ni act
  • Service of summons and procedural directions
  • Effect of section 269ss income tax act on ni act presumptions
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Negotiable instruments act, 1881

KAVERI PLASTICS versus MAHDOOM BAWA BAHRUDEEN NOORUL

A notice issued under Proviso (b) to Section 138 must demand the exact amount covered by the dishonoured cheque; a notice demanding an amount different from the cheque amount is invalid and fatal to the maintainability of prosecution under Section 138, and a claim that the discrepancy was a typographical error cannot cure the defect.

Source excerpt

  • Proviso (b) to section 138 notice
  • Dishonour of cheque
  • Validity of demand notice
  • Typographical error defence
  • Strict construction of penal statutes
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Code of criminal procedure, 1973

BANSAL MILK CHILLING CENTRE versus RANA MILK FOOD PRIVATE LTD. & ANR.

Because the amendment was a correction of an inadvertent typographical error limited to the description of the product, was moved after summons but before cross-examination of the complainant concluded, did not alter the nature or character of the complaint and caused no prejudice to the accused, the Trial Court rightly allowed the amendment and the High Court's order setting it aside was liable to be set aside.

Source excerpt

  • Amendments to complaints after cognizance
  • Prejudice to the accused
  • Section 138 ni act
  • Typographical error in complaint
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Negotiable instruments act, 1881

HDFC BANK LIMITED versus STATE OF MAHARASHTRA AND ANR.

The High Court was unjustified in quashing proceedings against respondent No.2 because the complaint, read with annexed documents, contained averments that she was responsible for day-to-day affairs, management and working of the company and was authorized to sign and negotiate documents and give guarantees, thereby fulfilling the requirement of Section 141(1) of the Negotiable Instruments Act; a complainant need only generally identify who was in charge and substance of allegation sufficed to proceed to trial.

Source excerpt

  • Vicarious liability
  • Quashing of complaint
  • Directors' liability under section 141
  • Section 138 ni act
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Criminal law

RAJENDRA ANANT VARIK versus GOVIND B. PRABHUGAONKAR

The High Court's reversal of the First Appellate Court's acquittal did not advert to the applicability of the Goa Money-Lenders Act, 2001 which provided a valid defence; having regard to the admitted position that the cheque amount of Rs.2,00,000 and the Rs.30,000 compensation had been paid, the Supreme Court exercised its power under Article 142 of the Constitution to compound the offence and acquit the appellant subject to the condition that the deposited amount of Rs.2,30,000 be paid to the complainant if not already paid.

Source excerpt

  • Section 138, negotiable instruments act
  • Applicability of goa money-lenders act, 2001
  • Compounding of offence under article 142 of the constitution
  • High court appellate interference with acquittal
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Code of criminal procedure, 1973

M/S CELESTIUM FINANCIAL versus A. GNANASEKARAN ETC

A complainant in proceedings under s.138 NI Act is the aggrieved person who has suffered economic loss and thus qualifies as a "victim" under s.2(wa) CrPC; consequently such a complainant may, in his capacity as victim, prefer an appeal under the proviso to s.372 CrPC against an order of acquittal without seeking special leave under s.378(4) CrPC. The High Court order refusing special leave is set aside and liberty granted to file appeal(s) under proviso to s.372 within four months.

Source excerpt

  • Victim
  • Appeal
  • Proviso to s.372 crpc
  • S.378(4) crpc - special leave
  • Section 138 ni act
  • Dishonour of cheque
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Negotiable instruments act, 1881

ASHOK SINGH versus STATE OF UTTAR PRADESH & ANR. R1: STATE OF UTTAR PRADESH R2: RAVINDRA PRATAP SINGH

The High Court erred in setting aside the concurrent findings of guilt by re-appreciating evidence and imposing on the complainant an obligation to prove his financial capacity at the threshold; the presumption under Sections 118 and 139 operated in favour of the complainant, the accused failed to rebut that presumption in a manner that raised reasonable doubt, the complaint was maintainable against the signatory partner who was the person in charge, and therefore the Trial Court and Appellate Court convictions were restored subject to modification of sentence to payment of a fine of Rs.32,00…

Source excerpt

  • Cheque dishonour
  • Onus of proof
  • Statutory presumption under sections 118 and 139
  • Maintainability of complaint against signatory/partner
  • Source of funds/financial capacity of complainant
  • Sentencing/mitigation
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Insolvency and bankruptcy code, 2016

RAKESH BHANOT versus M/S. GURDAS AGRO PVT. LTD

The interim moratorium under Section 96 IBC, triggered by filing applications under Section 94/95 IBC, operates to stay civil legal proceedings in respect of debts but does not stay or bar criminal prosecutions under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881; consequently, appellants cannot invoke Section 96 IBC to stay Section 138 prosecutions and the appeals and writ petition are dismissed.

Source excerpt

  • Moratorium
  • Interim moratorium
  • Personal insolvency
  • Stay of proceedings
  • Dishonour of cheques
  • Directors' criminal liability
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India decisions are organised by court, judge, legal area and indexed issue so a practitioner can move from a proposition to a citable authority with the surrounding context intact.

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