The Negotiable Instruments Act, a fundamental piece of legislation that
regulates negotiable instruments like promissory notes, bills of exchange, and
checks, includes several requirements that guarantee the efficient operation of
financial transactions. Section 138 of these rules is very important since it
deals with the problem of cheques that are dishonored because there isn't enough
money or for other similar causes.
People or organizations who have been paid
with a dishonored cheque in exchange for goods or services delivered are
protected by Section 138 of the Negotiable Instruments Act. This clause seeks to
preserve the confidence and dependability connected with negotiable instruments
by outlining the legal responsibility of the cheque issuer.
This article aims to examine the applicability of Section 138 of the Negotiable
Instruments Act, shedding light on its significance, procedural requirements,
and key considerations for both the complainant and the accused. Understanding
the intricacies of this provision is crucial for individuals and businesses
alike, as it enables them to navigate the legal landscape and safeguard their
Understanding the history and setting in which Section 138 functions is crucial
for comprehending its applicability. Understanding the significance of Section
138 begins with understanding the history, goals, and justification of the
Negotiable Instruments Act. Investigating the legislative intent reveals that
this clause acts as a remedy for cheque dishonor, making sure that parties are
held responsible for their conduct.
The Supreme Court ruled in K. Bhaskaran v.
Sankaran Vaidhyan Balan
(1999) that the drawer (person who issued the cheque)
can be held accountable under Section 138 in cases of cheque dishonor, even
though there was no debt or liability at the time the cheque was issued.
Key provisions of Section 138 establish the conditions that must be met for a
complaint to be filed. These conditions pertain to dishonored cheques, including
the amount of the cheque, the manner of presentation, and the legal notice
required to be served on the issuer. By analyzing these elements, individuals
and businesses can determine whether they have a valid case under Section 138.
Examining the jurisprudence and case laws related to Section 138 offers valuable
insights into its practical application. Significant court rulings provide
interpretations of key terms and clarify the standard of proof required to
establish an offense under Section 138. This jurisprudential exploration aids in
understanding the nuances of the provision and its implementation in legal
Finally, emerging issues and challenges related to the applicability of Section
138 merit consideration. Technological advancements and the digitalization of
banking transactions have introduced new complexities, requiring an evaluation
of how Section 138 applies in such contexts. By addressing these emerging
challenges, stakeholders can ensure that the provision remains relevant and
effective in the modern financial landscape.
Applicability And Scope
The applicability of Section 138 is quite broad and covers various scenarios.
Firstly, it applies to cheques drawn on any bank account and includes both
personal and business transactions. The Act considers the cheque as a negotiable
instrument, and Section 138 specifically deals with the consequences of
dishonoring such an instrument.
To initiate legal proceedings under Section 138, certain conditions must be met.
The cheque must have been presented for payment within six months or the
validity period specified on the cheque, whichever is earlier. If the cheque is
dishonored due to insufficient funds, the payee or holder in due course must
issue a notice in writing to the drawer within 30 days of receiving the
dishonored cheque. The drawer then has 15 days from the receipt of the notice to
make the payment.
The payee may submit a complaint before a magistrate within 30 days of the
notification period's expiration if the drawer fails to make the payment within
the allotted time. The magistrate can then file a lawsuit against the drawer,
which could lead to both financial and/or incarceration penalties. In MSR
Leathers v. S. Palaniappan
(2013): The Supreme Court ruled that a complaint
under Section 138 can be maintained against all the signatories of a cheque,
regardless of whether they are jointly or severally liable for the debt.
The scope of Section 138 is limited to dishonoring cheques due to insufficient
funds. Other reasons for dishonor, such as signature mismatch or stale cheque,
are not covered under this section. However, other provisions of the Negotiable
Instruments Act or other laws may be applicable in such cases. Overall, Section
138 of the Negotiable Instruments Act plays a crucial role in ensuring the
credibility and effectiveness of cheques as a mode of payment, providing a legal
framework for the recovery of funds in case of dishonor due to insufficient
Defense And Exceptions
- Payment made: If the drawer can prove that the cheque was already paid before its presentation, it can be used as a defense against the dishonor of the cheque.
- Lack of notice: If the drawer did not receive a notice of dishonor within the stipulated period, which is 30 days from the date of receipt of the information about the dishonor, it can be used as a defense.
- Alteration: If the cheque has been materially altered without the drawer's consent, it can be a defense against the dishonor.
- Absence of debt: If the drawer can prove that there was no existing debt or liability when the cheque was issued, it can be an exception to the dishonor of the cheque.
- Not for discharge of debt: If the cheque was issued for a purpose other than the discharge of a debt or liability, it can be an exception to the dishonor.
- Stop payment instruction: If the drawer had issued a valid stop payment instruction to the bank, but the bank still presented the cheque, it can be an exception to the dishonor.
It is important to note that these defenses and exceptions must be proved by the
drawer of the cheque during the legal proceedings related to the dishonor of the
cheque under Section 138.
The Negotiable Instruments (Amendment) Act, 2018: The Act introduced certain
amendments to the Negotiable Instruments Act, including provisions to streamline
the resolution process for dishonored cheque cases. These amendments aimed to
enhance the efficiency of cheque bounce cases and provide a quick remedy to the
Section 138 of the Negotiable Instruments Act is a crucial provision that deals
with the dishonor of cheques and provides a legal framework to ensure the smooth
functioning of financial transactions. Its applicability has proven to be
significant in resolving disputes related to bounced or dishonored cheques,
thereby protecting the rights of both payees and holders of negotiable
The provisions of Section 138 apply when a cheque is dishonored due
to insufficient funds in the issuer's account, and the payee serves a notice of
demand to the issuer within a specified timeframe. This provision has helped in
curbing instances of fraud and maintaining the credibility of cheques as a
reliable mode of payment.
The applicability of Section 138 has played a crucial
role in promoting trust and confidence in commercial transactions. By
establishing legal consequences for the dishonor of cheques, it encourages
individuals and businesses to honor their financial obligations promptly, thus
ensuring the efficient functioning of the economy.
Furthermore, Section 138 has been instrumental in expediting the resolution of
disputes by establishing a specific timeline for filing complaints and imposing
strict penalties on defaulters. This has provided a swift and effective
mechanism for seeking redressal and recovering the dues owed.
- Section 138 of the Negotiable Instrument Act