Wednesday, July 10, 2024

SECTION 56 OF NEGOTIABLE INSTRUMENTS ACT: EFFECT ON CHEQUE BOUNCING COMPLAINTS

 


Section 56 of Negotiable Instruments Act: effect on cheque bouncing complaints

The requisites of complaints under Section 138 of Negotiable Instruments Act 1881 (as amended and up to date) have undergone substantive changes over the years, thus, need of being aware of all such changes are very important. Though, the pre-requisites of filing Section 138 of Negotiable Instruments Act are too well known to need reiteration. In the present write up, however, the discussion shall remain confined to section 56 and Section 15 of Negotiable Instruments Act and endorsement and its effect on the complaints u/s Section 138 of Negotiable Instruments Act. For instance:

(i)          what will be the effect of making part payment in respect of cheque after the same is already drawn in favour of drawer and till the date of presentation of cheque for encashment?

(ii)        Whether in such an event of part payment,  the amount shown in the cheque shall not be payable and only part amount shall be payable on the date of presentation ?

(iii)       If so, how the said situation could be catered?

(iv)       What will be effect of presenting such cheque and whether on the basis of dishonor of cheque, whether the complaint u/s 138 of Negotiable Instruments Act shall be made out or not?

(v)         If such a complaint is not made out in view of part payment as illustrated above, what are the way out?

(vi)       If endorsement/indorsement of part payment is mandatory, how one may address the terms stipulated in Section 15 and Section 56 of Negotiable Instruments Act?

(vii)     Whether for non compliance of section 56 of the act, the complaint can be dismissed?

It may appear that the part payment received after issuance of cheque but before presenting the cheque for encashment has to be duly endorsed and even in statutory legal notice issued thereafter, such facts shall have to be narrated and also in the complaint, the said facts are to be narrated. Before proceeding further, Section 56 of the Negotiable Instruments Act may be reproduced herein for ready reference:

56. Indorsement for part of sum due.-

 

“No writing on a negotiable instrument is valid for the purpose of negotiation if such writing purports to transfer only a part of the amount appearing to be due on the instrument; but where such amount has been partly paid a note to that effect may be indorsed on the instrument, which may then be negotiated for the balance.”

Section 15 of the Negotiable instruments Act relating to “indorsement” may also be referred to for correct import. It defines the phrase ‘indorsement’ as follows:

 

15. Indorsement.-

When a maker or holder of a negotiable instrument signs the same, otherwise than as such maker, for the purpose of negotiation, on the back or face thereof or on a slip of paper annexed thereto, or so signs for the same purpose a stamped paper intended to be completed as a negotiable instrument, he is said to indorse the same, and is called the “indorse”.”

 

The Supreme Court, recently, in a matter bearing Criminal Appeal No. 1497 of 2022 captioned as Dashrathbhai Trikambhai Patel Vs Hitesh Mahendrabhai Patel has comprehensively dealt with the issue of indorsement/endorsement and its effect on complaint u/s 138 of Negotiable Instruments Act.

 

The issue that emerged for deliberation before the Supreme Court are as under:

 

(i) The term ‘debt or other liability’ used in Section 138 of the Act has been defined in the Explanation clause to mean a ‘legally enforceable debt or other liability’. Thus, whether the demand made in the statutory notice must be for a sum that is legally enforceable;

 

(ii) If the debtor has paid a part of the debt, a statutory notice seeking the payment of the entire sum in the cheque without any endorsement under Section 56 of the part-payment made,  would it not be legally sustainable; and

 

(iii) If the accused has paid off a part of the debt, whether, a complainant is precluded from initiating action  u/s 138 of Negotiable Instruments Act?

 

It may appear from the aforesaid discussion that the instrument is not negotiable, if part payment is made after issuance of cheque, but before presentation of cheque in bank for encashment and not reflected or endorsed in cheque.

The Supreme Court in Dashrathbhai Trikambhai Patel (Supra) has held in para 12 of the judgment:

“12. It must be noted that when a part-payment is made after the issuance of a post-dated cheque, the legally enforceable debt at the time of encashment is less than the sum represented in the cheque. A part-payment or a full payment may have been made between the date when the debt has accrued to the date when the cheque is sought to be encashed. Thus, it is crucial that we refer to the law laid down by this Court on the issuance of post-dated cheques and cheques issued for the purpose of security. In Indus Airways Private Limited v. Magnum Aviation Private Limited (2014) 12 SCC 539, the issue before a two-Judge Bench of this Court was whether dishonour of post-dated cheques which were issued by the purchasers towards ‘advance payment’ would be covered by Section 138 of the Act if the purchase order was cancelled subsequently. It was held that Section 138 would only be applicable, where there is a legally enforceable debt subsisting on the date when the cheque is drawn. In Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Limited (2016) 10 SCC 458, the respondent advanced a loan for setting up a power project and post-dated cheques were given for security. The cheques were dishonoured and a complaint was instituted under Section 138. Distinguishing Indus Airways (supra), it was held that the test for the application of Section 138 is whether there was a legally enforceable debt on the date mentioned in the cheque. It was held that if the answer is in the affirmative, then the provisions of Section 138 would be attracted. In Sripati Singh v. State of Jharkand 2021 SCC OnLine SC 1002, this Court observed that if a cheque is issued as security and if the debt is not repaid in any other form, before the due date or if there is no understanding or agreement between the parties to defer the repayment, the cheque would mature for presentation”

 

Similarly, the Supreme Court in Sunil Todi v. State of Gujarat Criminal Appeal No. 1446 of 2021 have expounded the meaning of the phrase debt or other liability’. It was observed that the phrase takes within its meaning a ‘sum of money promised to be paid on a future day by reason of a present obligation’. The court observed that a post-dated cheque issued after the debt was incurred would be covered within the meaning of ‘debt’. The court held that Section 138 of Negotiable Instruments Act would also include cases, where the debt is incurred after the cheque is drawn but before it is presented for encashment. In this context, it was observed:

“26. The object of the NI Act is to enhance the acceptability of cheques and inculcate faith in the efficiency of negotiable instruments for transaction of business. The purpose of the provision would become otiose if the provision is interpreted to exclude cases where debt is incurred after the drawing of the cheque but before its encashment. In Indus Airways, advance payments were made but since the purchase agreement was cancelled, there was no occasion of incurring any debt. The true purpose of Section 138 would not be fulfilled, if ‘debt or other liability’ is interpreted to include only a debt that exists as on the date of drawing of the cheque. Moreover, Parliament has used the expression ‘debt or other liability’ The expression “or other liability’ must have a meaning of its own, the legislature having used two distinct phrases. The expression ‘or other liability’ has a content which is broader than ‘a debt’ and cannot be equated with the latter. In the present case, the cheque was issued in close proximity with the commencement of power supply. The issuance of the cheque in the context of a commercial transaction must be understood in the context of the business dealings. The issuance of the cheque was followed close on its heels by the supply of power. To hold that the cheque was not issued in the context of a liability which was being assumed by the company to pay for the dues towards power supplied would be to produce an outcome at odds with the business dealings. If the company were to fail to provide a satisfactory LC and yet consume power, the cheques were capable of being presented for the purpose of meeting the outstanding dues.”

 

HOW TO MAKE ENDORSEMENT

In para no. 29 of Dashrathbhai Trikambhai Patel  (Supra) the Supreme Court has narrated in detail as to how to make endorsement on the cheque:

  

“29. Under Section 56 read with Section 15 of the Act, an endorsement may be made by recording the part-payment of the debt in the cheque or in a note appended to the cheque. When such an endorsement is made, the instrument could still be used to negotiate the balance amount. If the endorsed cheque when presented for encashment of the balance amount is dishonoured, then the drawee can take recourse to the provisions of Section 138. Thus, when a part- payment of the debt is made after the cheque was drawn but before the cheque is  encashed, such payment must be endorsed on the cheque under Section 56 of the Act. The cheque cannot be presented for encashment without recording the part payment. If the unendorsed cheque is dishonoured on presentation, the offence under Section 138 would not be attracted since the cheque does not represent a legally enforceable debt at the time of encashment”.

 

HIGH COURTS

(i)           The Division bench of Kerala High Court has held in Joseph Sartho vs Gopinathan (2008) 3 KLJ 784 that since the representation in the cheque was for a sum higher than the amount that was due on the date that it was presented for encashment, the drawer of the cheque cannot be convicted for the offence under Section 138 of the Act.

(ii)         The Delhi High Court in Alliance Infrastructure Project Ltd. v. Vinay Mittal ILR (2010) III Delhi 459. has observed that when part payment is made after the cheque is drawn, the payee has the option of either taking a new cheque for the reduced amount or by making an endorsement on the cheque acknowledging that a part payment was made according to the provisions of Section 56 of the Act. It was also held that the notice of demand which requires the drawer of the cheque to make payment of the whole amount represented in the cheque despite receiving part repayment against the sum, before the issue of notice, cannot be valid under Section 138(b) of the Act.

(iii)         A similar view was taken by the High Court of Gujarat in Shree Corporation v. Anilbhai Puranbhai Bansal [2018 (2) GLH

 

The para no. 25 of Dashrathbhai Trikambhai Patel  (Supra) the Supreme Court has succinctly observed as under:

“25. Section 138 creates a deeming offence. The provisos prescribe stipulations to safeguard the drawer of the cheque by providing them the opportunity of responding to the notice and an opportunity to repay the cheque amount. The conditions stipulated in the provisos need to be fulfilled in addition to the ingredients in the main provision of Section 138. It has already been concluded above that the offence under Section 138 arises only when a cheque that represents a part or whole of the legally enforceable debt at the time of encashment is returned by the bank unpaid. Since the cheque did not represent the legally enforceable debt at the time of encashment, the offence under Section 138 is not made out”.

 

The Supreme Court has thus summarised the situation as under:

 

(i) For the commission of an offence under Section 138, the cheque that is dishonoured must represent a legally enforceable debt on the date of maturity or presentation;

 

(ii) If the drawer of the cheque pays a part or whole of the sum between the period when the cheque is drawn and when it is encashed upon maturity, then the legally enforceable debt on the date of maturity would not be the sum represented on the cheque;

 

(iii) When a part or whole of the sum represented on the cheque is paid by the drawer of the cheque, it must be endorsed on the cheque as prescribed in Section 56 of the Act. The cheque endorsed with the payment made may be used to negotiate the balance, if any. If the cheque that is endorsed is dishonoured when it is sought to be encashed upon maturity, then the offence under Section 138 will stand attracted;

 

(iv) If part-payments is made after the debt was incurred and before the cheque was encashed upon maturity. The sum of rupees twenty lakhs represented on the cheque was not the ‘legally enforceable debt’ on the date of maturity. Thus, the accused cannot be deemed to have committed an offence under Section 138 of the Act when the cheque was dishonoured for insufficient funds; and

 

(v) The notice demanding the payment of the ‘said amount of money’ has been interpreted by judgments of the Supreme Court to mean the cheque amount. The conditions stipulated in the provisos to Section 138 need to be fulfilled in addition to the ingredients in the substantive part of Section 138.

 

In Dashrathbhai Trikambhai Patel (Supra) it is thus found that the accused has not committed an offence under Section 138 of the Negotiable Instruments Act, since part payment made after the issuance of cheque and before presentation of its encashment was not endorsed and factored and terms of section 56 of the Negotiable Instruments Act was not complied with.

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                        Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

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