New Laws for Cheque Bounce in India


Posted On : May 25, 2022
New Laws for Cheque Bounce in India
Cheques are a much familiar mode of transactions in India. People in business find cheques as a relevant payment mode since there is a document proof along with it. Since they are very common to all of us, the new laws for cheque bounce in India which may affect us should be known to all. Also know the latest Supreme Court judgment on cheque bounce case in India for better procedural understanding.

Is it cheque or check? If you make or receive payments through cheques as the mode of transaction, you should take a look hereby. As a negotiable instrument which is common in day-to-today financial transactions, some laws apply for regulation as well. The Negotiable Instruments Act, 1881 provides authority to cheques as mode of financial transactions. However, the same Act provides for punitive outcomes in case the provisions are not duly followed. Even the Section 138 of the Act lays criminal provisions in case a cheque is dishonoured (cheque bounced) due to insufficiency of funds. There are some new laws for cheque bounce in India which everyone who indulges in transactions through cheques should be aware of. One may also contact banking lawyers for professional assistance on particular facts.


New Laws for Cheque Bounce in India

Laws applicable in India and on Indians are brought in power by the legislature. Usually, banking laws in India are more of Reserve Bank of India affairs. Sometimes, the laws made by the legislature or the RBI policies under question are also brought before the Supreme Court of India. All such new laws for cheque bounce in India that may affect the layman are explained below.


Cheque Bounce New Law in India 2022

The Reserve Bank of India is the central regulatory authority for Banks in India. RBI time and again brings new policies to smoothen the banking system in India in order to provide convenience for banks as well as the customers. Given below are some new rules for cheque bounce in India which indirectly affect the ignorant customers.


RBI Guidelines Applicable Since August 2021

Bulk Clearing

The recent RBI circular notified clearance of cheques within 24 hours of production in the banks. Earlier, the gazetted holidays and weekends had to be skipped in case a payment is made through cheques. This used to affect businesses as well as employees who had to await their salaries if month end accompanied weekend. Thus, people who drew cheques in advance hoping to add sufficient funds in their accounts later should be aware of the 24 hour clearing system before drawing a cheque..

Positive Pay System

Through the new PPS system, confirmation of cheques of amounts above 50,000 has become a new practice. While those of less amount may be cleared through the automated machine system, the higher amount figures require double checks.

 

Contact cheque bounce lawyers in the nearby location for consultation purposes.

 

Cheque Bounce Latest Judgement 2022

When a case is brought before the court, it is a matter of who has more relevant evidence to prove their case. The mere reason is that the court does not move along with the parties during the transaction and only relies upon the evidence produced in case of a dispute which leads the court. The concept of burden of proof has been explained through the latest Supreme Court judgement on cheque bounce case whose highlights are provided below.


Sumeti Vij vs Paramount Tech Fab Industries (2021) (1) TVT 445 SC

The Supreme Court in the said case held the following pointers:

  • As per NI Act, there is a presumption of consideration for a person holding a cheque given by another
  • Primary onus to prove dishonour of cheque lies on the prosecution
  • The Prosecution does not need to prove the case beyond doubt
  • Prosecution only needs to prove the debt clearance and payment through cheques
  • Afterwards, onus to prove shifts to the accused

 

Facts of the Case

In this case, the accused lady had contacted the complainant for delivery of non-woven fabric to her factory given a certain address. Two cheques were given to the complainant with amounts 5 lakh+ each. However, when both the cheques were produced at the banks for payment, both were dishonoured due to insufficient funds. The complainant served the accused lady with due legal notices regarding said payments which was followed by complaint under Section 138 of NI Act, 1881. The complainant produced the relevant documents including cheques accompanied by dishonour memo while the accused lady did not produce any evidence in support of her statement. The trial court decided in favour of the accused stating that the complainant did not prove the debt beyond doubt as required under the Section 139 of NI Act, 1881. However, the decision was reversed by the concerned High Court stating that the prosecution had produced all the relevant evidence. Thus, the onus to prove shifted to the accused to deny any liability against the complainant and the whereabouts of said cheques. The hon’ble Supreme Court in the present case also upheld the High Court’s contention and quashed the accused’s appeal against the High Court’s decision.

 

The hon'ble Supreme Court in case of Kumar Exports (Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513] 4 (2019) 18 SCC 106) while supporting the above case also held that “Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non­existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist.”


New Laws for Cheque Bounce in india 2022

In a matter to be brought before the court, proving the locus standi, i.e. the stand before the court, is a must. In other words, the court should know what exactly affected you to move the legal matter before the court. In case of cheque bounce, only the payee or holder of said cheque is rightful to bring a legal action against the drawer of said cheque. To bring clarity in this regard, cheque bounce latest judgement 2022 has been provided below.


M/s TRL Krosaki Refractories Ltd. vs M/s SMS Asia Private Limited & Anr. (2022) Crl 270

The Supreme Court held that “When the complainant/ payee is a company, an authorised employee can represent  the  company. All that is necessary is to demonstrate before the learned Magistrate that the complaint filed is in the name of the “payee” and if the person who is prosecuting the complaint is different from the payee, the authorisation therefore and that the contents of the complaint  are  within  his knowledge.“

 

Facts of the Case

In this case, several cheques were drawn in favour of the said company. When brought to the banks for payment, the cheque amounted Rs 1 Crore 10 lakhs was dishonoured whereby the memo read ’Account closure’. A complaint under Section 138 of NI Act, 1881 was filed by the General Manager (Accounting) of the said company. The accused challenged the due process followed under Section 142 of NI Act, 1881 which lays various provisions for cheque bounce complaints including who can bring the cause in motion. The main concern as per the accused was that the General Manager was not empowered to bring an action on behalf of the company as per the laws. However, the complainant supported through documents that the Managing Director of the said company had empowered the General Manager (Accounting) to bring action and the signatures were also attested in this regard. The apex court rejected the order of High Court of Cuttack in support of the accused which upheld the question of stand by the General Manager. 

 

Conclusion

If you are someone indulged in transactions through cheques, knowing the new laws for cheque bounce in India is paramount. However, if there is some legal trouble involving payment through cheques, then knowing the cheque bounce case process. The latest Supreme Court judgement on cheque bounce case may also help in the ongoing cases. SInce the nature is more civil than criminal in cheque bounce cases, courts also prioritise payments over cheque bounce punishment in India.

Written By:
Ridhi Khurana

Ridhi Khurana

Gurgaon

Recommended Free Legal Advices
question markWhether Cheque can be transferable to other irrelevant person 3 Response(s)
Dear Sir, It all depends upon the facts and circumstances of the case however since there is no provision for discharge so drawer of the cheque has to face trial unless he goes to High Court and get such criminal case quashed.
question markCheque Bounce Case 7 Response(s)
Good Eve Teja, After reading the above instances you've mentioned, I am of opinion that you have a very strong case u/s 138 of Negotiable Instruments Act and you also may proceed parallelly with 420 IPC Fraud at JMFC Court and also Summary Civil Suit of Recovery, however the strong base of the case can only be casted in the very beginning as initially you are required to file police complaint and issue legal notice/s to the accused and your original story of claiming amounts being complicated has to be newly formed only based upon the remaining 2 blank cheques' you possess, as even bringing small changes to your complaint idea / story in later stages of any suit may result in shattering of your legal right of recovery. some crucial points are to be mentioned by you such as: 1. if signing of any agreement took place either on letter-head or stamp-paper between both parties ? 2. What is the mode of transfer of given loan amount? 3. When were the cheques issued in your favor? 4. Till now, what is mode of payment of interests you have received from borrower? Legal notice and police complaint here are going to form very basis dealing with crucial future trajectory of your cases so future amendments leading to loosening of case can be avoided, I am a High-court level Law-Practitioner based in Maharashtra, India, Specialized in Negotiable Instruments cases, I try to empower people by helping them know about their legal rights as much as much as for free-under my capacity, if you do happen to like my answer you may procced to get the the Strong Legal Notice served on accused at a highly economic fee possible, feel free to reach me out for further advise vide finding me on google, or by contacting the Vidhikarya for my details. Have a lovely day. __Adv. Yogesh Tahiliani (ADVOCATE, BOMBAY HIGH COURT, NAGPUR BENCH)
question markCheque bounce 6 Response(s)
Dear Sir, It is better to challenge such proceedings before High Court and get a stay order. It appears the said cheques were taken before delivery of the car that means before consideration is passed to you. There are so many technical points which will be argued before the High Court. Thanks.
question markill legally entered in closed house 1 Response(s)
Dear Sir, Get file complaints before several law enforcing authorities and also file CAVEAT petition and know about if she ventures filing any civil suit in such case protest in issuing stay order.
question markCheque bounce 2 Response(s)
Dear Sir, Please follow the following procedure. ====================================================================== Cheque bounce FAQs Negotiable Instruments Act 1A. Amended Cheque Bounce Provisions- 143A & 148…what is it? Ans: Section 143A- It empowers the Court to order the drawer of the cheque to pay Interim Compensation - 20% - Without depositing this amount the accused cannot defend the case. Section 148 – It empowers the Appellate Court to order payment pending the appeal against conviction The Appellate Court may order the appellant to deposit an amount which shall be a minimum of 20% of the fine or compensation awarded by the trial Court. This amount shall be in addition to the amount already paid by the appellant under Section 143A. It received the assent of the President and was notified in the Official Gazette on 02.08.2018 1. In which court do I need to file the complaint case under Section 138 N.I. Act in case drawer did not pay after receiving notice? A complaint case under Section 138 N.I. Act can be filed in any competent court in whose jurisdiction any of the following acts have occurred: a) Place of drawing of the cheque, b) Address of bank where cheque was presented (holders bank address), c) Address of bank where cheque is payable (drawers bank address) d) Place from where notice was received by drawer of cheque a. It is possible that each of these four acts could have occurred at different localities. The complainant can choose any one the above places to determine jurisdiction of court where they wish to file complaint. 2. What can I do if it has been more than 30 days since I received information of dishonour of cheque? If the cheque is still valid i.e. 3 months (currently) have not passed from the date of its issue, you can represent the cheque again to your banker as there is no restriction regarding the number of times a cheque can be presented and that every subsequent representation and dishonour gives rise to fresh cause of action for filing complaint. It may be noted that once a notice for payment is given then the holder must file a complaint under Section 138 N.I. Act within 30 days from expiry of notice period as a fresh cause of action will not arise if the cheque is presented again and it is dishonoured and failure to file complaint will lead to loss of remedy available under Section 138 N.I. Act. 3. How long after notice has been served can I file a case against the drawer? After giving notice you need to file a complaint case against drawer under Section 138 N.I. Act within 30 days from the expiry of notice period i.e. 15 days. In other words you need to file complaint case against drawer within 45 days (15+30) from the date of issue of notice. Failure to do so will lead to loss of remedy under Section 138 N.I. Act; however, you can file a summary suit for recovery of money and initiate criminal proceedings under Section 420 I.P.C. within 3 years from date of issue of cheque. 4. What can I do if I do not have the drawer's address? You need the address of the drawer of cheque to issue notice as contemplated under provisions of N.I. Act; also the address is necessary if you wish to avail other legal remedies available to you. You can send the notice to the last known address. In case the address of the drawer has changed and the drawer has not left a forwarding address and the notice is returned with the noting that addressee is not available at the address or addressee has left without leaving a forwarding address then you need to file a complaint case after 15 days (notice period) of receipt of such information or returned notice and within 30 days from expiry of notice period. Failure to do so will lead to loss of remedy under Section 138 N.I. Act; however, you can file a summary suit for recovery of money and initiate criminal proceedings under Section 420 I.P.C. within 3 years from date of issue of cheque 5. What should I do if the notice was returned and could not be served to the drawer? When a notice is returned to the sender as unclaimed or with the noting that addressee is not available at the address or addressee has left without leaving a forwarding address then the date of receipt of such information or returned notice would be the commencing date for the notice period of 15 days. Complaint case under Section 138 N.I. Act must be filed within 30 days from expiry of notice period. Such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address or previous address. 6. Can Mohan Law Chambers assist in drafting of legal notice as required by Section 138 of N.I. Act.? Yes, Mohan law Chambers offers assistance in drafting of legal notice as required by Section 138 of N.I. Act. 7. How long after receiving information of dishonour of cheque do I have to serve notice to the drawer? You need to serve a legal notice to drawer of cheque demanding payment of cheque amount within 30 days of the receipt of information from your banker regarding dishonour of cheque under Section 138 N.I. Act. 8. What if the cheque was given for a reason other than to discharge a legally enforceable debt or other liability? In cases where cheque was given for a reason other than to discharge a legally enforceable debt or other liability, the provisions of Section 138 N.I. Act are not applicable e.g. Cheque given as Gift, in charity, donation etc. 9. Can a cheque issued in security attract offence under Section 138 N.I. Act? With respect to the dishonour of cheques given as security, legal position is not very clear. It is subject to presumption and proof thereof that may be given by either party in support of their case. High Court of Delhi in the case of M/s Datt Enterprises ltd. vs. V.K.Dua held that the security cheque does not attract the provisions of Section 138 N.I. Act., if cheques were given as a security cheque as per past practice and pending reconciliation of accounts and not towards discharge of any liability. 10. What is a legally enforceable debt or other liability? Legally enforceable debt or other liability should be such which is contracted in accordance with law and which is not opposed to public policy viz., wagering contracts, debt obtained for running brothel or gambling house etc. 11. What is Section 138 N.I. Act and why is remedy available under it preferable to remedy available under other laws? a. Section 138 N.I. Act was made to provide an additional criminal remedy over and above the civil remedies available; to provide a speedy and effective remedy to holder of dishonoured cheque. b. Summary suit for recovery of money takes time (approximately 3 to 5 years) and criminal proceedings under Section 420 I.P.C. does not provide any provision for recovery of money and is meant only for prosecution of the drawer of the cheque who entertains dishonest intention to cheat. 12. What is a summary suit for recovery of money? Summary suit is a civil legal proceeding initiated for recovery of money due under any written agreement, cheque etc. These proceedings are different from normal recovery suit, as here the liability to prove that petitioner is not liable to recover any amount is on defendant for which he needs to obtain leave to defend from the court. 13. What is the validity of the cheque in day to day business? The current validity of cheques is 6 months. However, please note that from April 1, 2012. The validity will change to three months as per recent directive of RBI (under Sec. 35A, Banking Regulation Act, 1949) 14. What can I do if a cheque given to me has been dishonoured? a. The holder of a cheque that has been dishonoured can seek remedy in the following manner: i) Action under Section 138 Negotiable Instruments Act (N.I. Act): Give notice under within 30 days of receipt of information of dishonour from the bank. In case of non- payment by the drawer within the notice period of 15 days, then the holder must institute a complaint case for prosecuting drawer within 30 days of expiry of notice period. ii) Civil Action as Summary Suit: Issue notice within 3 years from issue date of cheque and institute a summary suit for recovery of cheque amount along with interest and legal expenses. The notice can also be used while filing summary suit for recovery of money. iii) Criminal Action: Initiate criminal proceedings by filing complaint under Section 420 Indian Penal Code (I.P.C.) within 3 years from issue date of cheque. Please note that there is no provision for recovery of money under Section 420 I.P.C. and this section is meant only for prosecution of the drawer of the cheque when dishonest intent to cheat in inferred. 15. What documents / evidences do I need at the time of filing complaint case under Section 138 N.I. Act? You will need at the minimum, the following: a) Proof of service of notice - receipt of postal department / courier b) Copy of notice c) Cheque in original 16. What can I do if I do not file a complaint within 30 days from expiry of notice period? If you have not filed a complaint case within 30 days after expiry of notice period, you can file a summary suit for recovery of money and initiate criminal proceedings under Section 420 I.P.C. within 3 years from the date of issue of cheque. 17. What can I do if it has been more than 30 days since I received information of dishonour of cheque and 6 months has passed from the date of issue of cheque? a. Other remedies are also available to recover the cheque amount. You can file a summary suit for recovery of money and initiate criminal proceedings under Section 420 I.P.C. within 3 years from date of issue of cheque. In case the cheque was never presented during its validity period then a summary suit is the only available remedy for recovery of money. (Notice can be given to drawer up to 3 years from date of issue of cheque for instituting a summary suit for recovery of money. Criminal proceedings for prosecution of drawer can also be instituted within 3 years from date of issue of cheque under Section 420 I.P.C.) 18. The drawer is asking me to settle the claim at a reduced value. What should I do? Its up to you to settle the claim at a reduced value as the same will save your precious time, as well as legal hassle. Now-a-days courts are also encouraging amicable settlement between the parties. However, if you settle the dishonoured cheque amount at a reduced value, you will lose all remedies available under law. 19. What remedy do I have if the drawer delays in settling after conviction? In a recent 2010 judgement, Supreme Court has laid strict rules to deal with such delaying tactics. Delay in settling cheques bounced will cost up to 20% of the cheque amount post-conviction. This is detailed as: 10% at District Court level; 15% at the High Court level; and up to 20% at the Supreme Court level. For e.g., Defaulter going for settlement will have to pay 10% of the cheque amount to avoid going to the jail. 20. Can I recover interest and legal expenses from the drawer of the dishonoured cheque? Yes, you can recover interest and legal expenses from the drawer of the dishonoured cheque in a summary suit for recovery of money, but not in the proceedings initiated under Section 138 N.I. Act. However, under Section 138 N.I. Act the award maybe higher than the cheque amount. 21. What should I do if the drawer does not make payment upon receipt of notice? You can adopt either or any of the remedies available to you: a) Can file a criminal complaint against drawer of cheque under Section 138 of N.I. Act. b) Can file a summary suit for recovery of money, interest and legal expenses. c) Can file a criminal complaint against drawer of cheque under Section 420 of I.P.C. Please note that there is no provision for recovery of money under Section 420 I.P.C. and this section is meant only for prosecution of the drawer of the cheque. In case a person has filed suit for recovery, then he is not precluded from filing a complaint under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code. The pendency of criminal matters would not be an impediment to proceeding with the civil suits. For full procedure contact me on mobile through Vidhikarya. 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