Cheque is an instrument to transfer the money from one person to another. Cheque is safe and secure. To promote cheques and people should trust the simple mechanism of cheque and many people should use it effectively without any doubt in their mind so the Government in the year 1988 have introduced a chapter in Negotiable instrument Act, 1881 which deals about dishonour of cheques. As per Negotiable Instrument Act section 138 to section 143 deals with the provision of dishonour of cheques
Problems in Dishonour of Cheques
If a cheque is bounced, then a penalty is levied on both drawer and payee by their respective banks. The person will additionally have to pay late payment charges if the dishounoured cheque is against repayment of a loan.
2. Damage To Credit History
Your credit history is negatively impacted if a cheque is dishonoured since your payment activities are reported to the credit bureaus by the financial institutions. The lenders will trust you if you have a good credit score. In order to have a good credit score, it’s a good practice to avoid your cheques from being bounced. Your good payment activities will help you build good CIBIL score and benefit you at the time of lending money from financial institutions.
Important terms which is used by Bank in relation to Cheques :
- Drawer -the maker of a bill of exchange or cheque is called the “drawer”
- Drawee- the person thereby directed to pay is called the “drawee”.
- Cheque Return Memo – the bank offer memo to the payee indicating the reason why the cheque id dishonoured.
Reason why Cheque is bounced :
- Insufficient Funds
- Closed account
- Stop payment
Let’s take a hypothetical situation to understand it completely in a very simple way :
Mr. Atul draws a cheque in the name of Ms. Ria of Rs. 5,000/-. Here Ms. Ria is a drawee and Mr. Atul is drawer. Ms. Ria deposited the cheque in the bank. The cheque got bounced i.e the cheque is dishonoured.
After dispositing the cheque Ms. Ria came to know about the dishonouring of cheque in 2-3 days. Then the bank will issue Cheque return memo.
As the cheque return memo is received by Ms. Ria within 1 month she needs to send a legal notice to Mr. Atul. But also if Ms. Ria and Mr. Atul are friends Ms. Ria knows the actual problem for dishonour of cheque then she has two options
- She can call Mr. Atul and ask for the reason and ask him when she can again deposit the cheque. If their will be a genuine problem or based on their understanding Ms. Ria deposit the cheque again and then the cheque is honoured.
- (ii) Ms. Ria can send a legal notice to Mr. Atul. She should mention the cheque is dishonoured, she should mention Mr. Atul should process the amount within 15 days from when the notice is received. Then to after 15 days no amount is being processed and no reply of legal notice is received by Ms. Ria then from 16th day her cause of action has started now within 1 month Ms. Ria will file a case against Mr. Atul under Negotiable Instrument Act 1881
Ms. Ria can file the case under sec 138 of Negotiable Instrument Act for dishonour of cheque. Ms. Ria can file the case with Judicial Magistrate 1st Class (JMFC) or Metropolitan Magistrate.
Documents which is to be furnished at the time of case :
- Copy of Original Cheque
- Cheque Return Memo
- Copy of Legal Notice
- Postal Receipt of the Legal Notice.
In accordance with section 138 of this act, dishonour of cheque is a criminal offence and is punishable with monetary penalty or imprisonment up to 2 years or both.
Latest amendments in the Act:
The Act has been amended time to time to ensure and enhance trust in negotiable instruments. With an aim to further streamline the Act, the Central Government incorporated Sections 143-A and 148 vide Negotiable Instruments (Amendment) Act, 2018 (“Amended Act”). These new sets of provisions have been effective since 1st September 2018.
- Section 143A of the Amended Act
Section 143-A of the Amended Act empowers any court while trying an offence for dishonour of a cheque to direct the drawer, who is the issuer of the cheque, to pay interim compensation to the complainant. The amount of compensation payable cannot exceed 20% of the amount as stated in the cheque. This amount has to be paid within a stipulated time period of 60 days from the date of the order passed by the court, or further within the extended period of 30 days, as may be directed by the court on showing sufficient cause for the delay caused.
- Section 148 of the Amended Act
According to the Amended Act, Section 148 states that in the event of the conviction of the drawer of the cheque, if the drawer proceeds to file an appeal, the appellant court has the power to order the drawer of a cheque to deposit an amount. This deposited amount in such case has to be a minimum of 20% of the fine or compensation awarded by the Magistrate Court in the appeal preferred against his/her conviction. However, if the appellant is acquitted, then the Court shall direct the complainant to repay to the appellant the amount so released, with interest.