CHEQUE DISHONOUR LAW
The Negotiable
Instruments Act, 1881
138 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 provisions 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 or other liability” means a legally
enforceable debt or other liability.
Comments
by author –
(a) The cheque has to be 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;
to check period of validity of cheque.
(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
That
is notice to be given within 30 days from receipt of information by him from
the bank regarding the return of the cheque as unpaid
(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.
within fifteen days of the receipt of the said
notice by payer, he shall make the payment, otherwise case can be filed within
how much days.
PRESUMPTION UNDER SECTION 139 NI ACTSection 139 Negotiable Instruments Act provides: 139. Presumption in favour of holder: It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. “The effect of these presumptions is to place the evidential burden on the accused of proving that the cheque was not received by the complainant towards the discharge of any liability. Because both sections 138 and 139 require that the court shall presume the liability of the drawer of the cheques for the amounts for which the cheques are drawn…it is obligatory on the courts to raise this presumption in every case where the factual basis for the raising of this presumption had been established. It introduced an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused.” AIR 2001 SUPREME COURT 3897 Section 140 in The Negotiable Instruments Act, 1881
140. Defence which may not be allowed in any prosecution under section 138.—
It shall not be a defence in a prosecution for an offence under section 138 that the drawer had no reason to believe when he issued the cheque that the cheque may be dishonoured on presentment for the reasons stated in that section.
Section 141 in The Negotiable Instruments Act, 1881 141 Offences by companies. — (1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence:
Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter. (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.— For the purposes of this section,— (a) “company” means any body corporate and includes a firm or other association of individuals; and (b) “director”, in relation to a firm, means a partner in the firm.]
Section
142 in The Negotiable Instruments Act, 1881
142
Cognizance of offences. —
(1) Notwithstanding
anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)—
(a) no court shall take cognizance of
any offence punishable under section 138 except upon a complaint, in writing,
made by the payee or, as the case may be, the holder in due course of the
cheque;
(b) such complaint is made within one
month of the date on which the cause of action arises under clause (c) of the
proviso to section 138:
Provided that the cognizance of a
complaint may be taken by the Court after the prescribed period, if the
complainant satisfies the Court that he had sufficient cause for not making a
complaint within such period.]
(c) no court inferior to that of a
Metropolitan Magistrate or a Judicial Magistrate of the first class shall try
any offence punishable under section 138; (2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,— (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. Explanation.— For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account. Amendment of section 142. Section 142 was numbered as sub-section (1) thereof and after sub-section (1) as so numbered, sub-section (2) was inserted by the Negotiable Instruments (Amendment) Act, 2015 [NO. 26 OF 2015 dated 26th December, 2015.] It shall be deemed to have come into force on the 15th day of June, 2015.
COMMENTS on section 142
(i) Consequent upon the failure of the
drawer to pay the money within the period of 15 days as envisaged under clause
(c) of the proviso to section 138, the liability of the drawer for being
prosecuted for the offence he has committed, arises, and the period of one
month for filing the complaint under section 142 is to be reckoned accordingly;
Sadanandan Bhadran v. Madhavan Sunil Kumar, AIR 1998 SC 3043.
(ii) A manager or any other person
authorised by the company can represent it during the course of legal
proceedings before the court and file a complaint; Salar Solvent Extractions
Ltd. v. South India Viscose Ltd., (1994) 3 Crimes 295 (Mad).
(iii) The Magistrate while taking
cognizance has to look into the question whether the ingredients of an offence
have been made out or not; M/s. Pearey Lal Rajendra Kumar Pvt. Ltd. v. State of
Rajasthan, (1994) 3 Crimes 308 (Raj).
(iv) The cause of action for filing
complaint would arise after the completion of 15 days from the date the drawer
receives the notice and fails to pay the amount within that period; V.N. Samant
v. M/s. K.G.N. Traders, (1994) 3 Crimes 725 (Karn).
(v) The payee cannot lodge a complaint
after the completion of one month from the date on which the cause of action
arose as there is a bar under clause (b) of section 142; V.N. Samant v. M/s. K.G.N.
Traders, (1994) 3 Crimes 725 (Karn).
(vi) So long as the period of notice
does not expire there can be no cause of action with the payee to make the
drawer liable criminally; T.K. Khungar v. Sanjay Ghai, (1994) 3 Crimes 802 (P
& H).
(vii) It is well settled that it is not
necessary for the Magistrate to specifically state that he is taking cognizance
of the offence. If he takes steps as provided under section 200, of the Code of
Criminal Procedure then it necessarily means that he has taken cognizance of
the offence; R. Rajendra Reddy v. M/s. Sujaya Feeds, (1994) 3 Crimes 692
(Karn).
(viii) The complainant must allege in his
complaint that the cheque was dishonoured due to want of sufficient amount in
the account, even if the payment was stopped; Ballakrishna Pillai v.
Abdullakutty, (1994) 2 Crimes 327 (Ker).
(ix) Once a cause of action has arisen,
the limitation will begun to run and it could not be stopped by presenting the
cheque again so as to have a fresh cause of action and fresh limitation; M/s.
Chahal Engineering and Construction Ltd. v. M/s. Verma Plywood Co., (1994) 1
Crimes 845 (P & H).
(x) The criminal prosecution has to be
launched within one month of the expiry of 15 days' period from the issuance of
notice as provided by section 142(b) of the Act; M/s. Chahal Engineering and
Construction Ltd. v. M/s. Verma Plywood Co., (1994) 1 Crimes 845 (P & H).
(xi) When the cheque stood issued in
favour of a company, a complaint under section 138 of the Act can be filed by
its Manager, Partner, Director or any person authorised by the company; M/s.
Ruby Leather Exports v. K. Venu, (1994) 1 Crimes 820 (Mad).
(xii) There is no ambiguity in clause (a)
of section 142 of the Act, which prohibits or excludes complaints being initiated
by Power of Attorney, agents of the payee or the holder in due course. A Power
of Attorney, will be competent to initiate a private complaint by stepping into
the shoes of the payee or the holder in due course; M/s. Ruby Leather Exports
v. K. Venu, (1994) 1 Crimes 820 (Mad).
Section 142A. —
142A. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment, decree, order or direction of any court, all cases transferred to the court having jurisdiction under sub-section (2) of section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, shall be deemed to have been transferred under this Act, as if that sub-section had been in force at all material times. (2) Notwithstanding anything contained in sub-section (2) of section 142 or sub-section (1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the court having jurisdiction under sub-section (2) of section 142 or the case has been transferred to that court under sub-section (1) and such complaint is pending in that court, all subsequent complaints arising out of section 138 against the same drawer shall be filed before the same court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that court. (3) If, on the date of the commencement of the Negotiable Instruments (Amendment) Act, 2015, more than one prosecution filed by the same payee or holder in due course, as the case may be, against the same drawer of cheques is pending before different courts, upon the said fact having been brought to the notice of the court, such court shall transfer the case to the court having jurisdiction under sub-section (2) of section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, before which the first case was filed and is pending, as if that sub-section had been in force at all material times. Amendment of section 142A. Section 142A was inserted by the Negotiable Instruments (Amendment) Act, 2015 [NO. 26 OF 2015 dated 26th December, 2015.] It shall be deemed to have come into force on the 15th day of June, 2015.
Section
143 in The Negotiable Instruments Act, 1881
143. Power of Court to try cases summarily.—
(1) Notwithstanding anything contained
in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this
Chapter shall be tried by a Judicial Magistrate of the first class or by a
Metropolitan Magistrate and the provisions of sections 262 to 265 (both
inclusive) of the said Code shall, as far as may be, apply to such trials:
Provided
that in the case of any conviction in a summary trial under this section, it
shall be lawful for the Magistrate to pass a sentence of imprisonment for a
term not exceeding one year and an amount of fine exceeding five thousand
rupees:
Provided
further that when at the commencement of, or in the course of, a summary trial
under this section, it appears to the Magistrate that the nature of the case is
such that a sentence of imprisonment for a term exceeding one year may have to
be passed or that it is, for any other reason, undesirable to try the case
summarily, the Magistrate shall after hearing the parties, record an order to
that effect and thereafter recall any witness who may have been examined and
proceed to hear or rehear the case in the manner provided by the said Code.
(2) The trial of a case under this
section shall, so far as practicable, consistently with the interests of
justice, be continued from day to day until its conclusion, unless the Court
finds the adjournment of the trial beyond the following day to be necessary for
reasons to be recorded in writing.
(3) Every trial under this section
shall be conducted as expeditiously as possible and an endeavour shall be made
to conclude the trial within six months from the date of filing of the
complaint. THE NEGOTIABLE INSTRUMENTS (AMENDMENT) ACT, 2018
NO. 20 OF 2018
[2nd August, 2018.]
An Act further to amend the Negotiable Instruments Act, 1881.
BE it enacted by Parliament in the Sixty-ninth Year of the Republic of India as follows:— Short title and commencement.
1. (1) This Act may be called the Negotiable Instruments (Amendment) Act, 2018.
(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
Insertion of new section 143A. 2. In the Negotiable Instruments Act, 1881 (hereinafter referred to as the principal Act), after section 143, the following section shall be inserted, namely:—
‘‘143A. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the Court trying an offence under section 138 may order the drawer of the cheque to pay interim compensation to the complainant—
(a) in a summary trial or a summons case, where he pleads not guilty to the accusation made in the complaint; and
2 of 1974.
26 of 1881.
Power to direct interim compensation.
jftLVªh lañ Mhñ ,yñ—(,u)04@0007@2003—18
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EXTRAORDINARY
Hkkx II — [k.M 1
PART II—Section 1
izkf/kdkj ls izdkf'kr
PUBLISHED BY AUTHORITY
lañ 32] ubZ fnYyh] c`gLifrokj] vxLr 2] 2018@Jko.k 11] 1940 ¼'kd½
No. 32] NEW DELHI, THURSDAY, AUGUST 2, 2018/SHRAVANA 11, 1940 (SAKA)
bl Hkkx esa fHkUu i`"B la[;k nh tkrh gS ftlls fd ;g vyx ladyu ds :i esa j[kk tk ldsA
Separate paging is given to this Part in order that it may be filed as a separate compilation.
REGISTERED NO. DL—(N)04/0007/2003—18
MINISTRY OF LAW AND JUSTICE
(Legislative Department)
New Delhi, the 2nd August, 2018/Shravana 11, 1940 (Saka)
The following Act of Parliament received the assent of the President on the
2nd August, 2018, and is hereby published for general information:—
(b) in any other case, upon framing of charge.
(2) The interim compensation under sub-section (1) shall not exceed twenty
per cent. of the amount of the cheque.
(3) The interim compensation shall be paid within sixty days from the date of the
order under sub-section (1), or within such further period not exceeding thirty days as
may be directed by the Court on sufficient cause being shown by the drawer of the
cheque.
(4) If the drawer of the cheque is acquitted, the Court shall direct the complainant
to repay to the drawer the amount of interim compensation, with interest at the bank
rate as published by the Reserve Bank of India, prevalent at the beginning of the
relevant financial year, within sixty days from the date of the order, or within such
further period not exceeding thirty days as may be directed by the Court on sufficient
cause being shown by the complainant.
(5) The interim compensation payable under this section may be recovered as if
it were a fine under section 421 of the Code of Criminal Procedure, 1973.
(6) The amount of fine imposed under section 138 or the amount of compensation
awarded under section 357 of the Code of Criminal Procedure, 1973, shall be reduced
by the amount paid or recovered as interim compensation under this section.’’.
3. In the principal Act, after section 147, the following section shall be inserted,
namely:—
‘‘148. (1) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973, in an appeal by the drawer against conviction under section 138, the
Appellate Court may order the appellant to deposit such sum which shall be a minimum
of twenty per cent. of the fine or compensation awarded by the trial Court:
Provided that the amount payable under this sub-section shall be in addition to
any interim compensation paid by the appellant under section 143A.
(2) The amount referred to in sub-section (1) shall be deposited within sixty
days from the date of the order, or within such further period not exceeding thirty days
as may be directed by the Court on sufficient cause being shown by the appellant.
(3) The Appellate Court may direct the release of the amount deposited by the
appellant to the complainant at any time during the pendency of the appeal:
Provided that if the appellant is acquitted, the Court shall direct the complainant
to repay to the appellant the amount so released, with interest at the bank rate as
published by the Reserve Bank of India, prevalent at the beginning of the relevant
financial year, within sixty days from the date of the order, or within such further period
not exceeding thirty days as may be directed by the Court on sufficient cause being
shown by the complainant.’’.
2 of 1974.
2 of 1974.
Insertion of new
section 148.
Power of
Appellate Court
to order payment
pending appeal
against
conviction.
2 of 1974.
MGIPMRND—1322GI(S3)—02-08-2018.
UPLOADED
PUBLISHED BY AUTHORITY
lañ 32] ubZ fnYyh] c`gLifrokj] vxLr 2] 2018@Jko.k 11] 1940 ¼'kd½
No. 32] NEW DELHI, THURSDAY, AUGUST 2, 2018/SHRAVANA 11, 1940 (SAKA)
bl Hkkx esa fHkUu i`"B la[;k nh tkrh gS ftlls fd ;g vyx ladyu ds :i esa j[kk tk ldsA
Separate paging is given to this Part in order that it may be filed as a separate compilation.
REGISTERED NO. DL—(N)04/0007/2003—18
MINISTRY OF LAW AND JUSTICE
(Legislative Department)
New Delhi, the 2nd August, 2018/Shravana 11, 1940 (Saka)
The following Act of Parliament received the assent of the President on the
2nd August, 2018, and is hereby published for general information:—
(b) in any other case, upon framing of charge.
(2) The interim compensation under sub-section (1) shall not exceed twenty
per cent. of the amount of the cheque.
(3) The interim compensation shall be paid within sixty days from the date of the
order under sub-section (1), or within such further period not exceeding thirty days as
may be directed by the Court on sufficient cause being shown by the drawer of the
cheque.
(4) If the drawer of the cheque is acquitted, the Court shall direct the complainant
to repay to the drawer the amount of interim compensation, with interest at the bank
rate as published by the Reserve Bank of India, prevalent at the beginning of the
relevant financial year, within sixty days from the date of the order, or within such
further period not exceeding thirty days as may be directed by the Court on sufficient
cause being shown by the complainant.
(5) The interim compensation payable under this section may be recovered as if
it were a fine under section 421 of the Code of Criminal Procedure, 1973.
(6) The amount of fine imposed under section 138 or the amount of compensation
awarded under section 357 of the Code of Criminal Procedure, 1973, shall be reduced
by the amount paid or recovered as interim compensation under this section.’’.
3. In the principal Act, after section 147, the following section shall be inserted,
namely:—
‘‘148. (1) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973, in an appeal by the drawer against conviction under section 138, the
Appellate Court may order the appellant to deposit such sum which shall be a minimum
of twenty per cent. of the fine or compensation awarded by the trial Court:
Provided that the amount payable under this sub-section shall be in addition to
any interim compensation paid by the appellant under section 143A.
(2) The amount referred to in sub-section (1) shall be deposited within sixty
days from the date of the order, or within such further period not exceeding thirty days
as may be directed by the Court on sufficient cause being shown by the appellant.
(3) The Appellate Court may direct the release of the amount deposited by the
appellant to the complainant at any time during the pendency of the appeal:
Provided that if the appellant is acquitted, the Court shall direct the complainant
to repay to the appellant the amount so released, with interest at the bank rate as
published by the Reserve Bank of India, prevalent at the beginning of the relevant
financial year, within sixty days from the date of the order, or within such further period
not exceeding thirty days as may be directed by the Court on sufficient cause being
shown by the complainant.’’.
2 of 1974.
2 of 1974.
Insertion of new
section 148.
Power of
Appellate Court
to order payment
pending appeal
against
conviction.
2 of 1974.
MGIPMRND—1322GI(S3)—02-08-2018.
UPLOADED BY THE MANAGER, GOVERNMENT OF INDIA PRESS, MINTO ROAD, NEW DELHI–110002
AND PUBLISHED BY THE CONTROLLER OF PUBLICATIONS, DELHI–110054.
————
DR. G. NARAYANA RAJU,
Secretary to the Govt. of India
Section 144 in The Negotiable
Instruments Act, 1881
144. Mode of service of summons.—
(1) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), and for the purposes of this Chapter, a Magistrate
issuing a summons to an accused or a witness may direct a copy of summons to be
served at the place where such accused or witness ordinarily resides or carries
on business or personally works; for gain, by speed post or by such courier
services as are approved by a Court of Session. (2) Where an acknowledgment purporting to be signed by the
accused or the witness or an endorsement purported to be made by any person
authorised by the postal department or the courier services that the accused or
the witness refused to take delivery of summons has been received, the Court
issuing the summons may declare that the summons has been duly served.
Section
145 in The Negotiable Instruments Act, 1881
145. Evidence on affidavit.—
(1) Notwithstanding anything contained
in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the
complainant may be given by him on affidavit and may, subject to all just
exceptions be read in evidence in any enquiry, trial or other proceeding under
the said Code.
(2) The Court may, if it thinks fit,
and shall, on the application of the prosecution or the accused, summon and
examine any person giving evidence on affidavit as to the facts contained
therein.
Section
146 in The Negotiable Instruments Act, 1881
146. Bank’s slip prima facie evidence of certain facts.—
The Court
shall, in respect of every proceeding under this Chapter, on production of
bank’s slip or memo having thereon the official mark denoting that the cheque
has been dishonoured, presume the fact of dishonour of such cheque, unless and
until such fact is disproved.
Section
147 in The Negotiable Instruments Act, 1881
147 Offences to be compoundable. —
Notwithstanding
anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every
offence punishable under this Act shall be compoundable.
> No dishonour of Cheque if Advocate's fee was based on percentage of
Compensation awarded by Court
December 23, 2017[2017] 88 taxmann.com 250
(SC) - NI Act: Claim of fees by an advocate based on percentage of subject matter in litigation could not be a basis of complaint under section 138.
> IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REF.No.1/2016
Date of decision : 17th October
2017
DAYAWATI ..... Petitioner
versus
YOGESH KUMAR GOSAIN .....
Respondent
Question I : What is the
legality of referral of a criminal compoundable case (such as on u/s 138 of the
NI Act) to mediation?
It is legal to refer a criminal
compoundable case as one under Section 138 of the NI Act to mediation.
Question II : Can the
Mediation and Conciliation Rules, 2004 formulated in exercise of powers under
the CPC, be imported and applied in criminal cases? If not, how to fill the
legal vacuum? Is there a need for separate rules framed in this regard
(possibly u/s 477 of the CrPC)?
The Delhi Mediation and
Conciliation Rules, 2004 issued in exercise of the rule making power under
Part-10 and Clause (d) of sub-section (ii) of Section 89 as well as all other
powers enabling the High Court of Delhi to make such rules, applies to mediation
arising out of civil as well as criminal cases.
Question III : In cases
where the dispute has already been referred to mediation – What is the
procedure to be followed thereafter? Is the matter to be disposed of taking the
very mediated settlement agreement to be evidence of compounding of the case
and dispose of the case, or the same is to be kept pending, awaiting compliance
thereof (for example, when the payments are spread over a long period of time,
as is usually the case in such settlement agreements)?
In the context of reference of
the parties, in a case arising under Section 138 of the NI Act, to mediation is
concerned, the following procedure is required to be followed :
III (i) When
the respondent first enters appearance in a complaint under Section 138 of the
NI Act, before proceeding further with the case, the Magistrate may proceed to
record admission and denial of documents in accordance with Section 294 of the
Cr.P.C., and if satisfied, at any stage before the complaint is taken up for
hearing, there exist elements of settlement, the magistrate shall inquire from
the parties if they are open to exploring possibility of an amicable resolution
of the disputes.
III (ii) If
the parties are so inclined, they should be informed by the court of the
various mechanisms available to them by which they can arrive at such
settlement including out of court settlement; referral to Lok Adalat under the
Legal Services Authorities Act, 1987; referral to the court annexed mediation
centre; as well as conciliation under the Arbitration and Conciliation Act,
1996.
III (iii) Once
the parties have chosen the appropriate mechanism which they would be willing
to use to resolve their disputes, the court should refer the parties to such
forum while stipulating the prescribed time period, within which the matter
should be negotiated (ideally a period of six weeks) and the next date
of hearing when the case should be again placed before the concerned court to
enable it to monitor the progress and outcome of such negotiations.
III (iv) In
the event that the parties seek reference to mediation, the court should list
the matter before the concerned mediation centre/mediator on a fixed date
directing the presence of the parties/authorized representatives before the
mediator on the said date.
III (v) If
referred to mediation, the courts, as well as the mediators, should encourage
parties to resolve their overall disputes, not confined to the case in which
the reference is made or the subject matter of the criminal complaint which
relates only to dishonouring of a particular cheque.
III (vi) The
parties should endeavour to interact/discuss their individual
resolutions/proposals with each other as well and facilitate as many
interactions necessary for efficient resolution within the period granted by the
court. The parties shall be directed to appear before the mediator in a time
bound manner keeping in view the time period fixed by the magistrate.
III (vii) In
the event that all parties seek extension of time beyond the initial six week
period, the magistrate may, after considering the progress of the mediation
proceedings, in the interest of justice, grant extension of time to the parties
for facilitating the settlement. For the purposes of such extension, the
magistrate may call for an interim report from the mediator, however keeping in
mind the confidentiality attached to the mediation process. Upon being
satisfied that bona fide and sincere efforts for settlement were being
made by the parties, the magistrate may fix a reasonable time period for the
parties to appear before the mediator appointing a next date of hearing for a
report on the progress in the mediation. Such time period would depend on the
facts and circumstances and is best left to the discretion of the magistrate
who would appoint the same keeping in view the best interest of both parties.
Contents of
the settlement
III (viii) If
a settlement is reached during the mediation, the settlement agreement which is
drawn-up must incorporate :
(a) a clear
stipulation as to the amount which is agreed to be paid by the party;
(b) a clear
and simple mechanism/method of payment and the manner and mode of payment;
(c)
undertakings of all parties to abide and be bound by the terms of the
settlement must be contained in the agreement to ensure that the parties comply
with the terms agreed upon;
(d) a clear
stipulation, if agreed upon, of the penalty which would enure to the party if a
default of the agreed terms is committed in addition to the consequences of the
breach of the terms of the settlement;
(e) an
unequivocal declaration that both parties have executed the agreement after
understanding the terms of the settlement agreement as well as of the
consequences of its breach;
(f) a
stipulation regarding the voluntariness of the settlement and declaration that
the executors of the settlement agreement were executing and signing the same
without any kind of force, pressure and undue influence.
III (ix) The
mediator should forward a carefully executed settlement agreement duly signed
by both parties along with his report to the court on the date fixed, when the
parties or their authorized representatives would appear before the court. 89
Proceedings
before the court
III (x) The
magistrate would adopt a procedure akin to that followed by the civil court
under Order XXIII of the C.P.C.
III (xi) The
magistrate should record a statement on oath of the parties affirming the terms
of the settlement; that it was entered into voluntarily, of the free will of
the parties, after fully understanding the contents and implications thereof,
affirming the contents of the agreement placed before the court; confirming
their signatures thereon. A clear undertaking to abide by the terms of the
settlement should also be recorded as a matter of abundant caution.
III (xii) A
statement to the above effect may be obtained on affidavit. However, the
magistrate must record a statement of the parties proving the affidavit and the
settlement agreement on court record.
III (xiii) The
magistrate should independently apply his judicial mind and satisfy himself that
the settlement agreement is genuine, equitable, lawful, not opposed to public
policy, voluntary and that there is no legal impediment in accepting the same.
III (xiv)
Pursuant to recording of the statement of the parties, the magistrate should
specifically accept the statement of the parties as well as their undertakings
and hold them bound by the terms of the settlement terms entered into by and
between them. This order should clearly stipulate that in the event of default
by either party, the amount agreed to be paid in the settlement agreement will
be recoverable in terms of Section 431 read with Section 421 of the Cr.P.C.
III (xv) Upon
receiving a request from the complainant, that on account of the compromise
vide the settlement agreement, it is withdrawing himself from prosecution, the
matter has to be compounded. Such prayer of the complainant has to be accepted
in keeping with the scheme of Section 147 of the NI Act. (Ref.:(2005)
CriLJ 431, Rameshbhai Somabhai Patel v. Dineshbhai Achalanand Rathi)
At this point,
the trial court should discharge/acquit the accused person, depending on the
stage of the case. This procedure should be followed even where the settlement
terms require implementation of the terms and payment over a period of time.
III (xvi) In
the event that after various rounds of mediation, the parties conclude that the
matter cannot be amicably resolved or settled, information to this effect
should be placed before the magistrate who should proceed in that complaint on
merits, as per the procedure prescribed by law.
III (xvii) The
magistrate should ensure strict compliance with the guidelines and principles
laid down by the Supreme Court in the pronouncement reported at (2010) 5
SCC 663, Damodar S. Prabhu v. Sayed Babalal H and so far as the
settlement at the later stage is concerned in (2014) 10 SCC 690 Madhya
Pradesh State Legal Services Authority v. Prateek Jain.
III (xvii) We
may also refer to a criminal case wherein there is an underlying civil dispute.
While the parties may not be either permitted in law to compound the criminal
case or may not be willing to compound the criminal case, they may be willing
to explore the possibility of a negotiated settlement of their civil disputes.
There is no legal prohibition to the parties seeking mediation so far as the
underlying civil dispute is concerned. In case a settlement is reached, the
principles laid down by us would apply to settlement of such underlying civil
disputes as well.
In case
reference in a criminal case is restricted to only an underlying civil dispute
and a settlement is reached in mediation, the referring court could require the
mediator to place such settlement in the civil litigation between the parties
which would proceed in the matter in accordance with prescribed procedure.
Question
IV : If the settlement in Mediation is not complied with – is the court
required to proceed with the case for a trial on merits, or hold such a
settlement agreement to be executable as a decree?
In case the
mediation settlement accepted by the court as above is not complied with, the
following procedure is required to be followed :
IV (i) In the
event of default or non-compliance or breach of the settlement agreement by the
accused person, the magistrate would pass an order under Section 431 read with
Section 421 of the Cr.P.C. to recover the amount agreed to be paid by the
accused in the same manner as a fine would be recovered.
IV (ii)
Additionally, for breach of the undertaking given to the magistrate/court, the
court would take appropriate action permissible in law to enforce compliance
with the undertaking as well as the orders of the court based thereon,
including proceeding under Section 2(b) of the Contempt of Courts Act, 1971 for
violation thereof.
Question
V : If the Mediated Settlement Agreement, by itself, is taken to be tantamount
to a decree, then, how the same is to be executed? Is the complainant to be
relegated to file an application for execution in a civil court? And if yes,
what should be the appropriate orders with respect to the criminal complaint
case at hand. What would be the effect of such a mediated settlement vis-à-vis
the complaint case?
V (i) The
settlement reached in mediation arising out of a criminal case does not
tantamount to a decree by a civil court and cannot be executed in a civil
court.
However, a settlement in mediation arising out of referral in a civil
case by a civil court, can result in a decree upon compliance with the
procedure under Order XXIII of the C.P.C. This can never be so in a mediation
settlement arising out of a criminal case.
> IN THE SUPREME COURT
OF INDIA
CRIMINAL
APPELLATE JURISDICTION
CRIMINAL
APPEAL NO. 1731 OF 2017
(ARISING
OUT OF SPECIAL LEAVE PETITION (CRL.) NO.5451 OF
2017)
M/S. METERS AND INSTRUMENTS PRIVATE LIMITED
&
ANR. …APPELLANTS
VERSUS
KANCHAN MEHTA
...RESPONDENT
WITH
CRIMINAL APPEAL NO. 1732 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (CRL.)
NO.5441 OF 2017)
18.
From the above discussion following aspects emerge:
i)
Offence under Section 138 of the Act is primarily a civil wrong. Burden of
proof is on accused in view presumption under Section 139 but the
standard
of such proof is “preponderance of probabilities”. The same has to be normally
tried summarily as per provisions of summary trial under the Cr.P.C. but with
such variation as may be appropriate to proceedings under Chapter XVII of the
Act. Thus read, principle of Section 258 Cr.P.C. will apply and the Court can
close the proceedings and discharge the accused on
satisfaction
that the cheque amount with assessed costs and interest is paid and if there is
no reason to proceed with the punitive aspect.
ii)
The object of the provision being primarily compensatory, punitive element
being mainly with the object of enforcing the compensatory element, compounding
at the initial stage has to be encouraged but is not debarred at later stage subject
to appropriate compensation as may be found acceptable to the parties or the
Court.
iii)
Though compounding requires consent of both parties, even in absence of such
consent, the Court, in the interests of justice, on being satisfied that the
complainant has been duly compensated, can in its discretion close the
proceedings
and discharge the accused.
iv)
Procedure for trial of cases under Chapter XVII of the Act has normally to be
summary. The discretion of the Magistrate under second proviso to Section 143,
to hold that it was undesirable to try the case summarily as sentence of more
than one year may have to be passed, is to be exercised after considering the
further fact that apart from the sentence of imprisonment, the
Court
has jurisdiction under Section 357(3) Cr.P.C. to award suitable compensation
with default sentence under Section 64 IPC and with
further
powers of recovery under Section 431 Cr.P.C. With this approach, prison
sentence of more than one year may not be required in all
cases.
v)
Since evidence of the complaint can be given on affidavit, subject to the Court
summoning the person giving affidavit and examining him and
the
bank’s slip being prima facie evidence of the dishonor of cheque, it is
unnecessary for the Magistrate to record any further preliminary
evidence.
Such affidavit evidence can be read as evidence at all stages of trial or other
proceedings. The manner of examination of the person giving affidavit can be as
per Section 264 Cr.P.C. The scheme is to follow summary
procedure
except where exercise of power under second proviso to Section 143 becomes necessary,
where sentence of one year may have to be awarded and compensation under Section
357(3) is considered inadequate, having regard to the amount of the cheque, the
financial capacity and the conduct of the accused or any other circumstances.
19.
In view of the above, we hold that where the cheque amount with
interest and cost as assessed by the Court is paid by a specified
date, the Court is entitled to close the proceedings in
exercise
of its powers under Section 143 of the Act read with Section 258
Cr.P.C. As already observed, normal rule for trial of cases under Chapter
XVII of the Act is to follow the summary procedure and summons
trial procedure can be followed where sentence exceeding one
year may be necessary taking into account the fact that compensation
under Section 357(3) Cr.P.C. with sentence of less than
one year will not be adequate, having regard to the amount of cheque,
conduct of the accused and other circumstances.
20.
In every complaint under Section 138 of the Act, it may be desirable
that the complainant gives his bank account number and if possible
e-mail ID of the accused. If e-mail ID is available with the Bank
where the accused has an account, such Bank, on being required,
should furnish such e-mail ID to the payee of the cheque. In
every summons, issued to the accused, it may be indicated that if the
accused deposits the specified amount, which should be assessed
by the Court having regard to the cheque amount and interest/cost,
by a specified date, the accused need not appear unless
required and proceedings may be closed subject to any valid objection
of the complainant . If the accused complies with such summons
and informs the Court and the complainant by e-mail, the Court
can ascertain the objection, if any, of the complainant and close
the proceedings unless it becomes necessary to proceed with
the
case. In such a situation, the accused’s presence can be required,
unless the presence is otherwise exempted subject to such conditions
as may be considered appropriate. The accused, who wants
to contest the case, must be required to disclose specific defence
for such contest. It is open to the Court to ask specific questions
to the accused at that stage. In case the trial is to proceed,
it will be open to the Court to explore the possibility of settlement.
It will also be open to the Court to consider the provisions
of plea bargaining. Subject to this, the trial can be on day to
day basis and endeavour must be to conclude it within six months.
The guilty must be punished at the earliest as per law and the
one who obeys the law need not be held up in proceedings for long
unnecessarily.
21.
It will be open to the High Courts to consider and lay down category
of cases where proceedings or part thereof can be conducted
online by designated courts or otherwise. The High
Courts
may also consider issuing any further updated directions for dealing
with Section 138 cases in the light of judgments of this Court.
…………………………………..J.
[ADARSH
KUMAR GOEL]
…………………………………..J.
[UDAY
UMESH LALIT]
OCTOBER 5, 2017.
THE NEGOTIABLE INSTRUMENTS (AMENDMENT) ACT, 2015 NO. 26 OF 2015 [26th December, 2015.] An Act further to amend the Negotiable Instruments Act, 1881. BE it enacted by Parliament in the Sixty-sixth Year of the Republic of India as follows:— Short title and commencement. 1. (1) This Act may be called the Negotiable Instruments (Amendment) Act, 2015. (2) It shall be deemed to have come into force on the 15th day of June, 2015. Amendment of section 6. 2. In the Negotiable Instruments Act, 1881 (hereinafter referred to as the principal Act), in section 6,— (i) in Explanation I, for clause (a), the following clause shall be substituted, namely:— ‘(a) “a cheque in the electronic form” means a cheque drawn in electronic form by using any computer resource and signed in a secure system with digital signature (with or without biometrics signature) and asymmetric crypto system or with electronic signature, as the case may be;’; (ii) after Explanation II, the following Explanation shall be inserted, namely:— ‘Explanation III.—For the purposes of this section, the expressions “asymmetric crypto system”, “computer resource”, “digital signature”, “electronic form” and “electronic signature” shall have the same meanings respectively assigned to them in the Information Technology Act, 2000.’. Amendment of section 142. 3. In the principal Act, section 142 shall be numbered as sub-section (1) thereof and after sub-section (1) as so numbered, the following sub-section shall be inserted, namely:— “(2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,— (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. Explanation.— For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.”. Insertion of new section 142A. 4. In the principal Act, after section 142, the following section shall be inserted, namely:— “142A. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment, decree, order or direction of any court, all cases transferred to the court having jurisdiction under sub-section (2) of section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, shall be deemed to have been transferred under this Act, as if that sub-section had been in force at all material times. (2) Notwithstanding anything contained in sub-section (2) of section 142 or sub-section (1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the court having jurisdiction under sub-section (2) of section 142 or the case has been transferred to that court under sub-section (1) and such complaint is pending in that court, all subsequent complaints arising out of section 138 against the same drawer shall be filed before the same court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that court. (3) If, on the date of the commencement of the Negotiable Instruments (Amendment) Act, 2015, more than one prosecution filed by the same payee or holder in due course, as the case may be, against the same drawer of cheques is pending before different courts, upon the said fact having been brought to the notice of the court, such court shall transfer the case to the court having jurisdiction under sub-section (2) of section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, before which the first case was filed and is pending, as if that sub-section had been in force at all material times. Repeal and savings. 5. (1) The Negotiable Instruments (Amendment) Second Ordinance, 2015, is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken under the principal Act, as amended by the said Ordinance, shall be deemed to have been done or taken under the corresponding provisions of the principal Act, as amended by this Act. DR. G. NARAYANA RAJU, Secretary to the Govt. of India. The Negotiable Instruments (Amendment) Act, 2015 though received the assent of the President on 26th December 2016, shall be deemed to have come into force on 15th June 2015 thereby giving retrospective effect to the enactment. The Act seeks to amend the Negotiable Instruments Act, 1881 and repeal The Negotiable Instruments (Amendment) Second Ordinance, 2015. Various provisions of the Principal Act have been altered i.e. Section 6(a) has been amended to include terms such as electronic signature and computer resource, Section 142 has been modified to include sub section (2) which defines the Court under whose local jurisdiction the offence under section 138 shall be tried as (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due, maintains he account, is situated or (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated and Section 142A is added prescribing the validation for transfer of pending cases. -Ministry of Law & Justice
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