A cheque refers to an instrument in writing which contains an unconditional order, addressed to a banker and is signed by a person who has deposited his money with the banker. This order, requires the banker to pay a certain sum of money on demand to the bearer of cheque (person holding the cheque) or to any other person who is specifically mentioned as payee[1] therein. A cheque in simple language means a printed form, used instead of money to make payments from your bank account.[2]

A cheque derives its effectiveness and legal enforceability from the Negotiable Instruments Act, 1881 (hereinafter referred to as Act), though a cheque could be seen or perceived as a simple banking instrument which is used for making payments and settling debts, a deeper insight into its possible impacts and repercussions of dishonouring could lead one to understand that a cheque is not merely one of the means of making payment like liquid cash, fund transfer etc., rather it has capacity to act as a legally binding instrument which could make delinquent drawer[3] criminally liable.

Unlike other means of payment, a cheque has some stringent provisions attached to it which makes it preferred option among the parties involved in commercial transactions. A cheque is classified as a bill of exchange under the Act, section 6 of the Act[4] reads as under:

A "cheque" is a bill of exchange[5] drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form.

Section 138[6] of the Act is one of the most significant and often most contentious part of the Act, it is this particular section which provides for imprisonment of the delinquent issuer. It is due the criminal nature of this section which has led to humongous litigation in the already burdened courts in India, as on 31st December, 2019, around 35.16 lakhs cases were pending under section 138[7] in the various courts of India.

Realising the gravity of the issue, the apex court constituted a constitutional bench which was led by erstwhile Chief Justice of India Mr. S.A. Bobde on the February 25th 2021 and decided to take up a suo moto petition in order to tackle this issue of pendency and formulate guidelines for speedy disposal of cases under section 138, thereby the apex court appointed Mr. Sidharth Luthra and Mr. K. Parameshwar as amici curiae[8].

The humongous number of cases related to section 138 is a testimony in itself about the enormous usage of cheques in trade and banking related transactions and it is also reflective of the fact that parties involved in commercial transactions are increasingly becoming dependent upon using cheque which provides for additional protection as compared to other payment options.

Is section 138 applicable only in instances of dishonour of cheque due to insufficiency of funds?

One the most common causes behind dishonour of cheques is the lack or insufficiency of funds maintained by the drawer in a bank account from which a cheque has been drawn, however there are other causes also which effects a dishonour of a cheque like signature mismatch, stale cheque and other ambiguities.

Given plethora of causes, each of which could lead to dishonouring of a cheque, it becomes pertinent to identify the causes which could invoke criminal liability under section 138, though the section mentions that a cheque should have been dishonoured either because of the amount of money standing to the credit of drawer's 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.

The courts in India have always interpreted the section liberally in order to include other factor (of same or similar genus as that of insufficiency of funds) into the ambit of section 138.

The apex court in the case of Laxmi Dychem v. State of Gujarat and Ors.[9] has made it categorically clear that the expression "amount of money...........is insufficient" appearing in Section 138, N.I. Act is a genus and dishonour for reasons such as "account closed", "payment stopped", "referred to the drawer" are only species of that genus and would attract penal liability under section 138 of the Act.

Hence, it is clear that causes which are similar to insufficiency of funds i.e. stop payment, account closed etc., which reflect some sort of unwillingness or deception on the part of the drawer in discharging his/her obligation, could make a person liable under section 138 of the Act.

Status of Accused:
A mere perusal of section 138 of the Act makes it amply clear that it is a drawer of the dishonoured cheque who can be prosecuted under the said section. Criminal liability under section 138 of the Act is fastened upon a person for being a drawer of the cheque, this simple proposition assumes much complexity when a cheque is issued by a partnership firm or by a company or by any association of persons or when issued out of a joint account where only one person has signed the cheque.

The apex court in a celebrated case titled as Aparna A. Shah V/s Sheth Developers Private Limited and Another[10], has held that each and every joint account holder cannot be prosecuted unless he has signed the cheque. This judgement leads to understanding that only those directors, partners, persons or officers can be held responsible for the offence punishable under Section 138 of the Act who are responsible for the conduct of the business of his/her organisation which imply connivance on the part of such responsible person.

At this juncture it becomes pertinent to recall the element of mens rea (literally means guilty mind) which is one of the core determinant factor in establishing whether an act committed is criminal act or not, hence in order to establish whether or not a person would be guilty under Section 138 element of connivance, consent, malice or intention to defraud has to be present.

Further, a guarantor can also be prosecuted under section 138 of the Act as it penalizes the dishonour of any cheque which has been issued in the discharge of the whole or part of "any debt or other liability" and the liability of the guarantor and principal debtor is co-extensive. Hence, the guarantor cannot escape liability under section 138 of the Act, if the guarantor has issued a cheque towards the discharge of the liability of the principal debtor.

Once criminal proceedings are set in motion against the accused then the accused has to be declared as 'not guilty' by the court in order for the accused person to be set free. The criminal liability under section 138 of the Act is dependent upon meeting of essentials under provided under the section, so if the essential requirements under the said section are not met then the complaint has to be dismissed by the court which shall result into acquittal of the accused person. The apex court in V.K. Bhat vs. G. Ravi Kishore[11] has held that dismissal of the complaint for non-appearance of the complainant amounts to acquittal as contemplated in Section 256 of the Code of Criminal Procedure.

Section 141: Offences by Companies and Firms:

Though the heading of Section 141[12] of the Act reads 'offences by companies' but according to the explanation provided under that section, "company" means "any body corporate and includes a firm or other association of individuals and "director", in relation to a firm means "a partner in the firm".

Therefore, if an offence under section 138 is committed by a company or by a partnership firm then in such situation, every person who, at the time the offence was committed, was in charge of, and was responsible to the company or partnership firm for the conduct of the business of the company or partnership firm, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. The apex court in the case of S.P. Mani and Mohan Dairy vs. Snehalatha Elangovan[13] held as under �

"Evidently, the gist of Section 138 is that the drawer of the cheque shall be deemed to have committed an offence when the cheque drawn by him is returned unpaid on the prescribed grounds. The conditions precedent and the conditions subsequent to constitute the offence are drawing of a cheque on the account maintained by the drawer with a banker, presentation of the cheque within the prescribed period, making of a demand by the payee by giving a notice in writing within the prescribed period and failure of the drawer to pay within the prescribed period. Upon fulfilment of these requirements, the commission of the offence which may be called the offence of 'dishonour of cheque' is complete.

If the drawer is a company, the offence is primarily committed by the company. By virtue of the provisions of Sub-section (1) of Section 141, the guilt for the offence and the liability to be prosecuted and punished shall be extended to every person who, at the time the offence was committed, was in charge of and was responsible to the company for the conduct of its business; irrespective of whether such person is a director, manager, secretary or other officer of the company. It would be for such responsible person, in order to be exonerated in terms of the first proviso, to prove that the offence was committed without his knowledge or despite his due diligence."

Sub-section (2) of section 141 of the Act further provides that when any criminal act has been committed by a company and it is proved that the such act 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, then such director, manager, secretary or other designated officer shall be deemed to be guilty of that offence and shall be liable to be prosecuted against and punished accordingly.

It is because of section 141 of the Act that penal liability under section 138 is casted on the persons who are connected with the company or a firm, it postulates that a person who is in charge of affairs of the company or who is responsible for the conduct of company's business, shall also be deemed guilty of the offence.

In the present context a drawer can be a company, a firm or an association of individuals, however, only those directors, partners, or officers can be held responsible for the offence punishable under section 138 of the Act who are responsible for the conduct of the business of their respective organizations.

Liability of a Company in respect of which Winding Up Proceedings have been initiated:

The apex court in the case of Kusum Ingots and Alloys Ltd. V/s Penner Peterson Securities Ltd.[14], observed that if the ingredients of section 138 of the Act are satisfied then there is no bar for initiating criminal proceeding against the company and its directors, on the basis of complaint made by the payee under the Act.

Even in cases where winding up petitions have been instituted against a company, it cannot escape the penal liability for dishonour of cheque under section 138 of the Act on the ground that the payment of the cheque pursuant to issuance of notice would amount to disposition of property of company and, hence, void under section 536 (2) of the Companies Act, 2013.

Whether Conviction under Section 138 of the Act Absolves Drawer of Cheque from Civil Liability?

It is a well settled principal of the law that if a person commits an act which accrues to him/her both criminal and civil liability then he/she would be liable under the both. A criminal liability upon a person cannot absolve him/her from the civil liability and vice-versa. Therefore, conviction in the criminal proceeding under section 138 of the Act will have no bearing on the decree or order which may have been passed by the judicial authority pursuant to any civil remedy exercised by aggrieved person.

The Gauhati High Court in the case of Golden Menthol Export Pvt. Ltd. V/s Sheba Wheels (P) Limited[15] has observed that a proceeding under section 138 of the Act cannot be construed to be an alternative to a civil suit or any other proceeding for realization of the amount remaining unpaid as a debt following the dishonour of a cheque by the debtor.

The implication which flows from above cited case law makes it amply clear that a person who is found to be guilty under section 138 of the Act can also be sued for civil remedy like money suit, specific performance and security enforcement etc.

Security Cheque:

It has almost become a custom now for the banks and financial institutions to obtain undated or post-dated cheques from their customers or borrowers to whom loans or advances are made, such cheques provide additional safeguard to the banks and financial institutions by providing additional recourse against the delinquent customers/borrowers, therefore these cheques are often referred to as "security cheque" in the banking parlance.

Though these cheques cannot be (and should not be) construed as a form of security, as these cheques are enabling instruments which provide for additional recourse at law to the banks and financial institutions against their customers/borrowers. A cheque technically is not an instrument of security like hypothecation, mortgage, lien and pledge etc.

Which are commonly obtained by the banks and financial institutions, however, owing to the penal provision attached with its dishonouring, a cheque assumes coercive nature which has capacity to force a drawer (customer of the bank or financial institution) to make the due payments to the bank or financial institution in order to discharge his/her debt/liability.

The expression "security cheque" is not a statutorily defined expression in the Act, further, the Act does not per se carve out an exception in respect of a "security cheque" therefore even if the dishonoured cheque in question was issued as a security cheque, it will still be covered under the ambit of Section 138 of the Act.

The only prerequisite is that the said cheque must be backed by some form of legally enforceable debt or liability towards the payee or the holder of the cheque. Moreover, unless and until, the defence is able to prove that the cheque was never meant to be presented for encashment, a mere claim to that effect does not rebut the presumption under section 118 (a) of the Act that every negotiable instrument is made or drawn for consideration.

By very nature of some commercial transactions there is a requirement for cheques to be issued without any date or issued as post-dated cheques, holder of cheque enters the date as per his/her suitability, and thereafter such cheques are presented for payment. This process does not make a cheque devoid of its enforceability under the law. On this issue the Bombay High Court in case of Purushottamdas Gandhi vs. Manohar Deshmukh[16] has observed that inserting such date does not amount to tampering or alteration but by delivery of such undated cheque the drawer authorizes holder to insert date.

Blank Cheque

As long as the cheque has been signed by the drawer, the fact that the name and figures are written or the date filled up by the complainant is not a material alteration for the purposes of section 87[17] of the Act. The only requirement is that the cheque must be backed by a legally enforceable debt or liability.

The Supreme Court in the case of Bir Singh vs. Mukesh Kumar[18] has held that "Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139[19] of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt." The judgment delivered in this case was relied upon by the apex court later again in the recent case of Jain P. Jose V/s Santosh & Anr[20].

Once the accused has admitted the signatures on the cheque in question, then the court is bound to raise presumption under section 139 of the Act Hence, if a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars then a cheque would be valid one.

The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by furnishing appropriate evidence. The provisions of the Act make it amply clear that a person who signs a cheque and hands it over to the payee remains liable unless such person adduces reliable evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability.

It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer and it is otherwise valid then the penal provisions of Section 138 would be applicable even when the cheque was issued as a blank cheque.

Fastening of Criminal Liability and Criminal Procedure Code:

A person held guilty under section 138 of the Act can 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. The substantive law under section 138 of the Act provided for quantum of punishment and penalty, however, it is worth mentioning relevant provisions of the procedural law i.e. Code of Criminal Procedure, 1973 (CrPC) which provides for procedure to be followed for punishing a guilty person.

Section 29 of CrPC deals with the sentences which Magistrates may pass, a Chief Judicial Magistrate is empowered to pass any sentence authorized by law (except sentence of death or imprisonment for life or imprisonment for a term exceeding seven years). On the other hand, sub-section (2) of Section 29 empowers a court of a Magistrate of First Class to pass a sentence of imprisonment for a term not exceeding three years or fine not exceeding Rs.10,000/- or of both.

Thus, it would seem that a Magistrate of First Class would not be able to impose a fine more than Rs.10,000/-. The difficulty caused by the ceiling imposed by section 29(2) of CrPC has been subsequently removed by insertion of section 143(1) in the Act (by Amendment Act No.55 of 2002) with effect from 6th February, 2003.

Section 143(1) of the Act provides that notwithstanding anything contained in CrPC, all offences under Chapter XVII of the Act should be tried by a Judicial Magistrate of the First Class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 of the CrPC (relating to summary trials) shall, as far as may be, apply to such trials. In view of conferment of such special power and jurisdiction upon the First Class Magistrate, the ceiling as to the amount of fine stipulated in section 29(2) of CrPC is removed, therefore, a First Class Magistrate can impose fine upto twice the amount of the cheque[21].

If the Magistrate orders the convict to pay fine, then either whole or part of such fine may be awarded as compensation under section 357(1) of CrPC[22] to the complainant (payee). However, if the Magistrate chooses not to impose fine and confines the sentence to imprisonment only, then a Magistrate can award compensation under section 357(3) of CrPC[23]. Sub-section (3) of section 357 of CrPC is categorically provides that compensation can be awarded only where fine does not form part of the sentence. Section 357(3) has been the subject-matter of judicial interpretation by the Supreme Court in several decisions.

In the case of State of Punjab vs. Gurmej[24] the apex court held that "A reading of sub-section (3) of Section 357 would show that the question of award of compensation would arise where the court imposes a sentence of which fine does not form a part"

The apex court in the case of Sivasuriyan V/s Thangavelu[25] held that the only question that arises for consideration is whether the court can direct payment of compensation in exercise of power under sub- section (3) of Section 357 in a case where fine already forms a part of the sentence. Apart from sub-section (3) of Section 357 there is no other provision under the Code whereunder the court can exercise such power:"

After extracting section 357(3) of CrPC, the apex court proceeded to hold thus: "On a plain reading of the aforesaid provision, it is crystal clear that the power can be exercised only when the court imposes sentence by which fine does not form a part"

When an order has been passed for payment of compensation or fine, recovery of the same should be pursued, and in such cases, the fact that the sentence of imprisonment in default has been fully undergone should not be a bar to the issue of a warrant for levy of the fine.

The compensation awarded under section 138 of the Act is recoverable as a fine according to section 431 of CrPC which states that any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine. Section 431 of CrPC makes it clear that any money other than a fine payable on account of an order passed under the CrPC shall be recoverable as if it were a fine.

Further, when an order has been passed for payment of compensation or fine, recovery of the same should be pursued, and in such cases, the fact that the sentence of imprisonment in default has been fully undergone should not be a bar to the issue of a warrant for levy of the fine.

It is pertinent to look at section 64 of the Indian Penal Code (IPC) which reads as "In every case of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case of an offence punishable with imprisonment or fine, or with fine only, in which the offender is sentenced to a fine.

It shall be competent to the Court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence".

An ordinary reading of the provisions of sections 357(3) and 431 CrPC together with section 64 of IPC is sufficient to imply that a court while making an order for payment of compensation is also empowered to include a default sentence in case of non-payment of the same. On this point it is important to note that in Vijayan V/s Sadanandan K[26] the apex court held that while awarding compensation under section 357(3) CrPC, the court is within its jurisdiction to add a default sentence of imprisonment as was held in the case of Hari Singh V/s Sukhbir Singh.[27]

Conclusion:
Section 138 of the Act is particularly helpful to the cause of banks or financial institutions which advance loans to the borrower after collecting post-dated or undated cheques which are often called as 'security cheques' in the lending parlance. Banks and financial institutions derive great deal of comfort in having such security cheques as they can potentially act as effective recovery tool against the errant borrowers.

It is the penal provision of section 138 which makes post-dated/security cheques a very effective recovery tool as the apprehension of getting imprisoned pushes the delinquent drawer (who generally will be a borrower to the banks/financial institutions) into making due payments to the lender. The banks and financial institutions also prefer taking recourse under section 138 as the same will not adversely affect the civil, contractual and statutory remedies like arbitration, money suit, specific performance etc as available to them by virtue of being a lender.

Considering the compelling nature of cheques as payment instrument which are widely used for paying consideration, discharging financial obligations and other related purposes, it could reasonably said that Section 138 of the Act not only brings in trade discipline but it also expands the business landscape of the financial institution which are able to develop risk appetite to take exposure on the tricky borrowers, which in absence of security cheques the banks and financial institutions wouldn't have taken.

Moreover, the cases related to section 138 of the Act are summarily tried under the CrPC, therefore having recourse under it would be more efficient way of realising the dues as compared to having recourse under other civil remedies which do not provide for summary proceedings.

End-Notes:

1. Section 7 of the Act defines payee as 'The person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid, is called the "Payee"
2. https://dictionary.cambridge.org/dictionary/english/cheque
3. Section 7 of the Act defines drawer as 'The maker of a bill of exchange or cheque is called the "drawer"; the person thereby directed to pay is called the "drawee"
4. https://legislative.gov.in/sites/default/files/A1881-26.pdf
5. Section 7 of the Act defines bill of exchange as 'A "bill of exchange" is an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum of money only to, or to the order of, a certain person or to the bearer of the instrument'
6. Section 138 of the Acts reads as "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 provision of this Act, be punished with imprisonment for 8 [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, 9 [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 of other liability" means a legally enforceable debt or other liability".
7. https://www.scobserver.in/journal/supreme-court-frames-guidelines-to-tackle-pendency-of-cheque-dishonour-cases/
8. Suo Motu Writ Petition (CRL.) No.2 of 2020, available at https://main.sci.gov.in/supremecourt/2020/9631/9631_2020_31_501_27616_Judgement_16-Apr-2021.pdf
9. Reported in (2012) 13 SCC 375
10. Reported in (2013) 8 SCC 71
11. Reported in (2016) 13 SCC 243
12. Section 141 reads as "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: 1 [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 anybody corporate and includes a firm or other association of individuals; and (b) "director", in relation to a firm, means a partner in the firm."
13. Available at MANU/SC/1189/2022 (16.09.2022 - SC)
14. Reported in (2000) 2 SCC 745
15. Reported in 2007 (2) GLJ 211
16. 2007 (1) Mh.L.J. 210
17. Section 87 of the Act reads as "Effect of material alteration: Any material alteration of a negotiable instrument renders the same void as against anyone who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties. Alteration by indorsee: And any such alteration, if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration thereof
18. (2019) 4 SCC 197
19. Section 87 of the Act reads as "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"
20. SLP (Crl.) No(s). 5241 OF 2016, available at https://main.sci.gov.in/supremecourt/2016/18389/18389_2016_8_17_39530_Order_10-Nov-2022.pdf
21. https://nagaonjudiciary.gov.in/study%20material/1581514481917_NI%20Act.pdf
22. Section 357(1) of CrPC read as: When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment order the whole or any part of the fine recovered to be applied., rest of the section can be accessed from https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_000010_197402_1517807320555&orderno=400
23. when a Court imposes a sentence, of which fine does not form a part, Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced
24. Appeal (crl.) 318 of 2001, available at https://indiankanoon.org/doc/1832276/
25. 2004 (13) SCC 795
26. Reported in (2009) 6 SCC 652
27. Reported in (1998) 4 SCC 551