Every Cheque Bounce Is Not A Section 138 Matter!

 Ms Money: Cheque bounced?

Mr Banker: Madam, you can seek help by filing a suit under Section 138…

It is a widely accepted norm in India that if a cheque is dishonoured then the person can get relief through legal court proceedings under Section 138 of the Negotiable Instruments Act, 1881. As easy as it may sound, Section 138 is not a ‘Brahmāstra’ for all cheque bounce cases.

In the present case, the Bombay High Court did not provide relief in the cheque dishonour case. The judgement specifically states that “No doubt cheque is a negotiable instrument which is transferable and negotiable; the presumption under Section 138 of the Negotiable Instrument Act can be drawn only when the pre-conditions are satisfied. The complainant unilaterally put dates on the cheques without the authority of the accused and even by not informing him. So, it amounts to material alterations. If it is so such negotiable instrument becomes void".

The complainant is one of the partners in a partnership firm (“the financier”) who is the appellant. In 2003, the financier gave a loan of Rs. 1 crore to the accused (“the developer”) so that he could pay the consideration to the owner of the property.  A Memorandum of Understanding (MoU) for repayment was entered between the two parties, wherein the developer had issued two cheques which were not complete in all respect (i.e. the cheques did not mention the name of the payee and were undated). The developer could not complete the construction of the building in time and by way of a civil suit has prayed for an extension of time for recovery of the amount by the financier based on the MoU. The two cheques were deposited by the financier in 2007, after filing the Civil Suit the developer against the financier, which was returned unpaid. Hence, the financier filed two complaints in the trial court which acquitted the developer. The conclusion drawn by the trial court is when the suit was pending how the developer can give authority to the financier to put the name of the payee and the date on the cheques. Hence the present appeals.

The High Court considered the reasoning given by the trial Court for concluding the acquittal. The material question was whether the financier was justified in putting the name of the payee and the date on the cheques.

The court observed that putting the name of the payee cannot be held to be objectionable for the reason that they were handed over to the financier only.

For putting the date on the cheques the court referred to section 87 of the Negotiable Instruments Act which authorizes alteration in two contingencies: -

(a) If it is with the consent of the parties.

(b) Even if the party does not give consent if the alterations are done to carry out the common intention of the parties.

The court noted that neither of these contingencies exists to authorize the financier to put in dates on the cheques. The financier has not stated that those dates were put in as instructed by the developer. The circumstances suggest that there was a dispute filed in Civil Court by the developer for extension of the time and has not consented to the financier to deposit those cheques. The financier unilaterally put in dates on the cheques without the authority of the developer and even by not informing him. So, it amounts to material alterations which render such a negotiable instrument void. Hence prosecution under Section 138 of the Negotiable Instrument Act cannot be initiated in the case of M/s. Pinak Bharat and Company v. Anil Ramrao Naik (Criminal Appeal Nos. 1630 and 1631 of 2011, Bombay High Court)