The issue of insufficient funds is one of the most common causes for the dishonor of a cheque under the Negotiable Instruments Act, 1881 in India. This scenario not only disrupts the financial transactions between the involved parties but also has legal ramifications. In this blog post, we will delve into what the Act says about insufficient funds, and how both the drawer and payee can navigate this complicated situation.
What is “Insufficient Funds”?
The term “insufficient funds” refers to a situation where an account lacks adequate money to honor a particular financial obligation, such as a drawn cheque. When a bank receives a cheque for payment, one of the first things it does is to check whether the drawer’s account holds sufficient funds to complete the transaction. If not, the cheque is returned, or “bounced,” with a ‘Cheque Return Memo’ indicating the reason as “insufficient funds.”
Legal Consequences under Section 138
For the Drawer
Section 138 of the Negotiable Instruments Act, 1881 penalizes the drawer of a bounced cheque, including due to insufficient funds. If convicted, the drawer may face imprisonment for a term extending to two years or a fine that may extend to twice the amount of the cheque, or both.
For the Company
If the drawer is a company, then as per Section 141, the company as well as certain key managerial persons may be held liable, unless they can prove that the offense was committed without their knowledge or that they had exercised due diligence to prevent it.
Procedure to Seek Recourse
- Legal Notice: The holder (payee) of the dishonored cheque must send a legal notice to the drawer within 30 days of receiving the ‘Cheque Return Memo’.
- Response Time for Drawer: The drawer has 15 days from the receipt of the notice to settle the amount or present a reasonable cause for the non-payment.
- Filing a Complaint: If the drawer fails to make the payment within this 15-day period, the payee has the right to file a criminal complaint under Section 138 within 30 days.
- Legal Proceedings: The court then proceeds to handle the matter, issuing summons and possibly warrants if compliance is not met.
Practical Tips for Both Parties
For the Drawer:
- Keep Track of Balances: Regularly monitor your account to ensure that sufficient funds are available, especially when issuing cheques.
- Contact the Payee: If you foresee an issue with funds, contact the payee immediately to discuss alternatives or to stop them from depositing the cheque.
For the Payee:
- Document Everything: Keep all documents related to the transaction, such as invoices and the ‘Cheque Return Memo’.
- Consult Legal Advice: Before proceeding with legal action, consult with a legal expert to make sure that you follow the proper procedures.
A cheque bounce due to insufficient funds is not just a financial problem but also a legal matter with severe implications under the Negotiable Instruments Act, 1881. Both the drawer and the payee should understand their rights and responsibilities to minimize risks and resolve the issue in a lawful manner.
- Negotiable Instruments Act, 1881 – Ministry of Law, Government of India
- “Section 138 of the Negotiable Instruments Act” – Indian Legal Services
- “How to Handle Cheque Bounce Cases” – Legal Journal India
Disclaimer: This blog post is intended for informational purposes only and should not be considered as legal advice.
Understanding the nuances of insufficient funds under the Negotiable Instruments Act can help both drawers and payees safeguard their financial and legal interests.