The legal heirs of someone deceased, convicted under Section 138, are neither liable to pay the fine or undergo imprisonment. However, they have a right to challenge the conviction of their predecessor. Trial Court had acquitted the (now) deceased on basis of an opinion of a handwriting expert. High Court considered, the opinion was inconclusive. […]

Considering, Statement of Objects and Reasons of Amendment, Amended Section 148 of The N.I. Act is applicable w.r.t. Appeals against Orders of Conviction and Sentence for the Offence under Section 138, even where Criminal Complaints for the Offence are filed prior to Amendment Act No. 20/2018 [01.09.2018]. “If such a purposive interpretation is not adopted, […]

The presumption under Section 139 is a rebuttable presumption; Section 139 is an example of a reverse onus and test of proportionality should guide construction and interpretation of reverse onus clauses on accused and accused cannot be expected to discharge an unduly high standard of proof; standard of proof for rebutting is of preponderance of […]

“The correctness of the decision in Sadanandan’s case was doubted. Three-Judge Bench of this Court in MSR Leathers v. S. Palaniappan held that there is nothing in the provisions of Section 138 of The Act that forbids the holder of the cheque to make successive presentation of the cheque and institute the criminal complaint based […]

To commit an offence, within the meaning of Section 138 of The Negotiable Instruments Act, 1881 there must be a legally enforceable debt or other liability subsisting on the date of drawal of the cheque. This is important to point out for sometimes cheques are post-dated. Notably, in Indus Airways Pvt. Ltd. v. Magnum Aviation […]

You do not need an Advocate to draft a Section 138(b), NI Act Notice. A hand written note mentioning – i) the amount under subject, ii) cheque nos., iii) dates of issue, iv) bank particulars, v) details of dishonor – with a demand for repayment, is valid for the purposes of calculating relevant limitation periods. […]

“The notice under Section 138 is required to be given to the ‘drawer’ of the cheque so as to give the drawer an opportunity to make the payment and escape the penal consequences. There is nothing in Section 138 which may even remotely suggest issuance of notice to anyone other than the drawer. The opportunity […]

A person is deemed to have committed an offence, within the meaning of Section 138 of The Negotiable Instruments Act, 1881 when any cheque drawn by him, on an account maintained by him with a banker, for payment of any amount of money to another person, in whole or partial discharge of a legally enforceable […]

Dashrath Bench cleverly interpreted the Harman Approach and its effect on the Bhaskaran Ratio. It was fairly concluded by SC, the “offence in contemplation of Section 138 of The NI Act was the dishonor of the cheque alone”; and that so far as the commission of the offence itself is concerned the proviso had no role to […]

The chain of five events: i) the drawal of the cheque, ii) the presentation of the cheque, iii) the returning of the cheque as unpaid, iv) the giving of notice and v) the failure to make the payment within 15 days of receiving the notice – complete the commission of the offence, described under Section […]

A person is deemed to have committed an offence, within the meaning of Section 138 of The Negotiable Instruments Act, 1881 when any cheque drawn by him, on an account maintained by him with a banker, for payment of any amount of money to another person, in whole or partial discharge of a legally enforceable […]

Section 138 of The Negotiable Instrument Act, 1881 encapsulates the situation of dishonour of a cheque due to insufficiency of funds in the drawer’s account. Subsequent to the dishonour, Section 138 enjoins that the payee must give a notice to the drawer, in writing, demanding payment of money. More often than not, however, the drawer […]