Dishonour of security cheque commits no offence under section 138 NI Act
Question asked on: 30/07/2019
I have taken a loan from bajaj finseve. I gave three cheques for security purpose. I paid 18 EMI on time. From last few months, I was not able to pay EMI. They filed the cheque and deposited to the bank, which dishonoured due to insufficient balance.
Moreover, they filed a case against me. What will be the next procedure? The SI is calling me. I m not able to pay. What to do, kindly assist me.
If the Bajaj Finserv had accepted those cheques for the security purpose, therefore, Bajaj could not present in the bank for its encashment. The Security Check never issued in the discharge of debt or liability. According to Section 138 of the Negotiable Instrument Act, when the cheque issues for the discharge of debt or liability thereupon offence commits if the drawer does not honour the cheque.
Presumption of debt or liability
Under the Negotiable Instrument Act, the cheque is a valuable instrument. Therefore the law presumes that when a person issues a cheque, he wants to discharge his debt or liability. In order to give that effect section, 139 NI Act creates a presumption of debt and liability in favour of the holder of the cheque.
Upon perusal of the facts and circumstances of your case, it infers that you fell in debt at the time of issue of the cheque. Therefore, the burden of proof shifted upon you to prove that the cheque was a security cheque. In the absence of such proof, the court shall presume that it was not a security cheque.
In Indus Airways (P) Ltd. v. Magnum Aviation (P) Ltd., (2014) 12 SCC 539 the Supreme Court of India held that if there was no debt on liability at the time of issue of cheque then no criminal liability will arise under section 138 upon dishonour of that cheque.
Whether the cheque was a security cheque or not depends upon the nature of the transaction. If the transaction shows that the maker of cheque wanted to discharge his debt or liability, then he cannot withdraw from it at the subsequent stage [Balaji Seafoods Exports (India) Ltd. v. Mac Industries Ltd., (1999) 1 CTC 6 ].
If you have evidence to prove that the cheques were not issued in discharge of debt, then no criminal liability will arise under Section 138 of the Negotiable Instrument Act [Indus Airways (P) Ltd. v. Magnum Aviation (P) Ltd., (2014) 12 SCC 539]. However, it is not possible for you because you have admitted that you have taken a loan from the Bajaj Finserv. When you failed to pay the EMI after that Bajaj presented them for encashment. There was indeed some financial liability upon you. Therefore, the bajaj finserv rightly given in the discharge of responsibility.
It would be right for you to contact the Bajaj for settlement of the debt. If the Bajaj Finserv agrees, then you should prepare a settlement deed. You may produce that settlement deed before the court and seek some more time. The Bajaj will compound the case after receiving the whole due amount.
It is a complaint case. Therefore, sub-inspector has no power to investigate this offence. If the sub-inspector calls you, make a complaint to the superintendent of police against him. According to Section 142 of the negotiable instrument, the judicial magistrate of the first class of the metropolitan magistrate has the power to take cognisance. No FIR needed for an offence committed under section 138 of the Negotiable Instrument Act.
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Shivendra Pratap Singh
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