Q1. Explain the essential ingredients of an offence under Section 138 of the Negotiable Instruments Act.
Answer (Mains Model):
Introduction:
Section 138 NI Act was inserted to enhance the credibility of cheques and ensure commercial certainty.
Essential Ingredients:
To constitute an offence under Section 138, the following conditions must be satisfied:
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Cheque must be drawn by the drawer on an account maintained by him.
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Cheque must be issued for discharge of a legally enforceable debt or liability.
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Cheque must be presented within its validity period (3 months).
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Cheque must be dishonoured due to insufficiency of funds or exceeding arrangement.
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Payee must issue a written demand notice within 30 days of dishonour.
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Drawer must fail to make payment within 15 days of receipt of notice.
Case-law:
📌 K. Bhaskaran v. Sankaran Vaidhyan Balan – offence consists of 5 components.
Conclusion:
Only upon failure to pay within 15 days after notice does the offence stand completed.
Q2. Discuss the presumption under Sections 118 and 139 of the NI Act and the manner of rebuttal.
Answer:
Law:
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Section 118(a) presumes consideration.
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Section 139 presumes that the cheque was issued for discharge of debt.
Nature of Presumption:
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Mandatory but rebuttable.
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Accused need not prove defence beyond reasonable doubt.
Standard of Proof:
👉 Preponderance of probabilities
Modes of Rebuttal:
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Cross-examination of complainant
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Circumstantial evidence
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Showing improbability of transaction
Case-law:
📌 Rangappa v. Sri Mohan – presumption includes existence of legally enforceable debt.
📌 Kumar Exports v. Sharma Carpets – mere denial insufficient.
Q3. Whether dishonour of cheque due to “stop payment” instructions attracts Section 138?
Answer:
Yes. Dishonour due to stop-payment instructions does not absolve liability under Section 138.
Rationale:
Otherwise, drawer could defeat the object of the Act by issuing stop-payment instructions.
Case-law:
📌 Modi Cements Ltd. v. Kuchil Kumar Nandi
📌 Laxmi Dyechem v. State of Gujarat
Conclusion:
Section 138 applies unless drawer proves absence of legally enforceable debt.
Q4. Discuss the legal requirements relating to statutory notice under Section 138(b).
Answer:
Requirements:
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Notice must be in writing.
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Must be issued within 30 days of dishonour.
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Must demand payment of cheque amount.
Service of Notice:
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Actual service not mandatory.
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Refusal or avoidance = deemed service.
Case-law:
📌 C.C. Alavi Haji v. Palapetty Muhammed
Effect of Defective Notice:
Complaint becomes not maintainable.
Q5. Whether a cheque issued as security can attract Section 138 of the NI Act?
Answer:
Yes, if a legally enforceable liability exists on the date of presentation.
Principle:
Nature of cheque (security or otherwise) is not decisive; existence of debt is.
Case-law:
📌 ICDS Ltd. v. Beena Shabeer
📌 Sripati Singh v. State of Jharkhand
Conclusion:
Security cheque ≠ automatic exemption.
Q6. Discuss the jurisdiction of courts in cheque dishonour cases.
Answer:
Statutory Position:
After the 2015 amendment, jurisdiction lies where the payee’s bank is situated.
Case-law:
📌 Dashrath Rupsingh Rathod (pre-amendment)
📌 Bridgestone India Pvt. Ltd. v. Inderpal Singh (post-amendment)
Conclusion:
Amendment intended to protect payees from harassment.
Q7. Explain the liability of directors and officers under Section 141 of the NI Act.
Answer:
Principle:
When an offence is committed by a company:
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Company must be arraigned as accused.
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Persons in charge and responsible for conduct of business are vicariously liable.
Mandatory Requirement:
Specific averment in complaint.
Case-law:
📌 Aneeta Hada v. Godfather Travels
📌 SMS Pharmaceuticals v. Neeta Bhalla
Q8. Is mens rea required for an offence under Section 138 NI Act?
Answer:
No. Section 138 creates a strict liability offence.
Reason:
Object is compensatory and to ensure cheque credibility.
Case-law:
📌 Kaushalya Devi Massand v. Roopkishore Khore
Q9. Discuss compounding of offence under the NI Act.
Answer:
Provision:
Section 147 makes offence under Section 138 compoundable at any stage.
Guidelines:
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Early compounding encouraged.
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Costs may be imposed for delayed compounding.
Case-law:
📌 Damodar S. Prabhu v. Sayed Babalal
Q10. Distinguish between civil liability and criminal liability under the NI Act.
Answer:
| Civil Liability | Criminal Liability |
|---|---|
| Recovery of money | Punishment + compensation |
| CPC applies | CrPC + NI Act |
| No presumption | Presumption under S.139 |
Conclusion:
Proceedings under Section 138 are quasi-criminal, primarily compensatory