Dishonour of cheque: Legal and moral wrong

Dishonour of cheque: Legal and moral wrong

What an author likes the most to write is his signature at the corner of a cheque, but what if that cheque returns back?

A cheque is a piece of paper containing in writing a right entitling the holder to claim something, usually money, but sometimes goods.  It’s also known as a bill of exchange drawn on a specified banker and not expressed to be payable on demand including an electronic image of a truncated cheque and a cheque in electronic form. 

Important Terms:

• Author of the cheque: Drawer

• The person in whose favour the cheque is drawn: Payee

• Bank from where funds to be transferred: Drawee bank

Dishonour of cheque:

Cheque bounce is a slang used when a cheque is returned from the bank due to any reason like non-tally of signatures, stale cheque and insufficient funds in the account (an offence). The drawee bank instantly issues and sends a ‘Cheque Return Memo’ to the banker of the payee on dishonour of cheque mentioning the reason of the same. Lastly, the payee’s banker will return the bounced cheque and the cheque bounce memo (a receipt of information) to the payee. 

Passing bad cheques can be illegal, and the crime can range from a misdemeanour to a felony. Sec 138-143 of Negotiable Instruments Act deals with dishonouring of cheques which are considered as an offence.

Essentials to attract sec 138 of the act:

• Dishonour of cheque

• Payment in the discharge of debt/liability

• Presentation of the cheque within the validity period(6-months)

• Dishonour due to insufficient funds etc.

• Element of dishonesty

• Notice and demand from the drawer within 30 days of receipt of the information

• Non-payment by drawer within 15 days from the receipt of the notice

  Sec 13(1) of the Negotiable Instrument Act

  Sec 6 of the Negotiable Instruments (Amendment) Act, 2002 enlarging the definition of the cheque.

  In Devendra Singh v. Varinder Singh M.P. high court considered the dishonouring of cheque under sec 138 where the signature of the drawer was different from the bank records.

  When a cheque gets expired i.e., after 6 months from the date of issuance.

  Sec 138 of Negotiable Instruments Act.

Legal remedies

Following are the important things to avail legal remedies provided for bounced cheque:

• The complaint should be filed in the court of Judicial Magistrate of First Class or Metropolitan Magistrate (MM). within:

•    30 days from the receipt of the reply to notice;

•    30 days after the expiry of 15 days from the date the notice was sent in case of no reply.

• If the payment by way of the cheque is made as gift or charity, it doesn’t attract sec 138 as payment is not for legally enforceable debt/liability.
• If after the receipt of the notice, the cheque is presented at the bank on the instance of the drawer of the cheque and results in dishonouring again it doesn’t extend the timeline of the drawer as provided in the notice. 
• Dishonestly stopping the payment of the cheque issued by drawer comes within the ambit of sec 138. 
• Dishonour of mutilated cheque doesn’t comes u/s 138. 
• The drawer can be awarded with the punishment for imprisonment up to 2 years or with fine twice the amount of the cheque or with both. 

A person faces great hardship if a cheque issued in his favour is dishonoured. So utter carefulness while discharging one’s legally enforceable debt/liability should be taken. 

  Uplanche v. R.K. Vimala, 1998 (A.P. High Court)

  Electronics Trade Ltd. v. Indian Technologist Pvt. Ltd., A.I.R. 1996 S.C. 2339

  Deepak Aggarwal v. Ram Swaroop Jain

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Protection of Women from Domestic Violence Act, 2005: A Critical Study

Protection of Women from Domestic Violence Act, 2005: A Critical Study

A woman who is responsible for the new beginnings of creatures is generally subjected to violence. Domestic violence is a global phenomenon and constitutes a major human rights problem. The United Nations Committee on Convention of Elimination of all forms of Discrimination Against Women (UNCCEDAW) in its general recommendation stated that state parties should act to protect women against violence of any kind especially occurring within the family.

Domestic violence manifests as verbal, physical, or psychological abuse within the family. In India statistics reveal that about 45% of married women undergo physical or psychological violence. What is pathetic about domestic violence is that women facing it are brutally helpless.  In India, it was recognized as a crime in the 1980’s sec 498A and 304B of IPC. In 1984 Evidence act was amended.

These changes didn’t protect women. Hence, the Protection of Women from Domestic Violence Act, 2005 (PWDVA) was passed and enforced on 26 October 2006, finding its origin from the Act lies in Article 15 (2) of the Constitution of India. The PWDVA is a civil law providing relief to the woman who faces violence at home. It has certain crossovers from civil to criminal law so criminal law will start when the protection order or Magistrate’s order is violated.

The objective of the act is to provide:

• For more effective protection of rights generated under the constitution.
• Protection to the wife or female live-in partner from domestic violence at the hands of the husband or male live-in-partners or their relatives.
• Protection to children who are tormented or tortured.

It was for the first time in Indian law; Domestic violence has been defined in the act u/s 3. It is a comprehensive definition including women’s experience of abuse and includes not only physical violence but also other forms of violence such as emotional /verbal, sexual, and economic abuse.

The act has taken care of the necessity for appointment of protection officers by the State Government who will aid and assist the aggrieved women in getting relief and justice.

According to the prevailing custom, a woman after her marriage relinquishes her rights over her parental house. She totally depends on the wishes of her husband or any other members of the family who own the house.

• The act lays down important rights of women:
• Right to services of protection officers.
• Women’s right to reside in the shared household. 
• Right to alternate accommodation if required.
• Right of the woman to live in a home free from violence.

Remedies available under this act:

The reliefs under the Act are in addition to existing laws without making any changes in the existing personal law regime on family matters. A woman can go for relief under other laws later after obtaining under the act.

• Residence orders (sec19)

• Protection orders (sec18)

• Monetary reliefs (sec20)

• Custody orders (sec21)

• Compensation orders (sec22)

Domestic violence is in violation of the Indian constitution and against human rights. Everyone should understand that women are not an object but an individual whose presence should be cherished.

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