Payment to secure a government Job is considered a bribe and does not attract offence under section 138 NI Act
Preface: The Criminal Appeal is directed against the judgment made in C.C.No.32 of 2017 dated 04.01.2018 on the file of the Fast Track Magistrate Court, Srivilliputtur, acquitting the respondent for the offence under Section 138 of the Negotiable Instruments (hereinafter referred as ‘NI’) Act.
Provisions of sec 138 N.I Act attracts only when it has been issued to discharge a legally enforceable debt
Prayer: Criminal Appeal filed under Section 378(4) of Code of Criminal Procedure, to call for the records in S.T.C.No.1742 of 2015 on the file of the learned District Munsif cum Judicial Magistrate at Sriperumbudur and to set aside the order dated 27.04.2017.
SICA does not create any legal bar to file criminal case against a SICK company or its directors as per s. 138 N.I Act
The provided judgment is from the Supreme Court of India concerning the dishonour of cheques under the Negotiable Instruments Act, 1881. The judgment, delivered by Justices Manoj Misra and Ujjal Bhuyan, set aside the High Court’s order and restored the proceedings to the Magistrate’s court. The decision relied on precedents that addressed the recall of processes and the legal standing of “SICK” industrial companies.
Complaint filed under section 138 N.I Act is maintainable even Partnership Firm is not named as accused
The Hon’ble Supreme Court clarified that a partnership firm is not a separate legal entity distinct from its partners, but a compendious term for the partners themselves, who are jointly and severally liable for the firm’s debts and offences. The Court held that under Section 141 of the Negotiable Instruments Act, 1881, the term “company” includes a partnership firm by legal fiction, and a “director” in relation to a firm means a partner. Therefore, when a cheque is dishonoured under Section 138 issued in the name of a partnership firm, the partners can be prosecuted individually without necessarily arraigning the firm as an accused or issuing notice to it. The High Court’s order quashing the complaint for failure to issue notice to the firm or name it as an accused was set aside, and the complaint against the partners was restored, with permission granted to implead the firm as an accused if necessary. This judgment distinguishes the liability of partners in a firm from directors in a company, emphasizing joint and several liability rather than vicarious liability applicable to companies.
Directions issued to manage S. 138 NI Act cases effectively
Section 138 N.I Act: Closure of the bank accounts within a few weeks of issuance of the cheque raises serious questions about the conduct and intent of the respondent
Subject: Appeal against the judgment of the Honorable High Court. Brief Facts: The trial and sentencing related to Section 391 of the Cr.P.C and the defense witness. The Honorable High Court acquitted the accused. Analysis, Reasoning, and Conclusion: During the trial, the accused claimed that there were no loan transactions between the parties. However, in the Appellate court he presented receipts indicating the repayment of the loan. Additionally, the closure of the bank accounts shortly after the issuance of the cheque raises questions about the respondent’s conduct and intent. The respondent, being a subscriber to a chit fund company, is expected to have knowledge of the laws that can benefit him. Conclusion: The appeal was allowed and due to the age of the accused, the sentence was waived, but compensation was imposed. The Appeal was allowed.
Section 138: After the civil court declares the cheque as security the sentence and damages provided by the criminal court would not lie
Appellant convicted under section 138 NI Act – Whether accused can be held guilty whereas the competent civil jurisdictions already passed decree in connection with the same transaction – Proceedings and facts before the lower court – Same cheque was in issue before both civil and criminal courts and the conclusions of the courts below.
Section 138 N.I Act: Time barred debt or not itself a prima facie for evidence and cannot invoke section 482 cr.p.c to quash the same
Head note: Challenge against quashing the summoning order u.s. 138 N.I Act – Quash is based on time barred cheque – Time barred debt or not itself prima facie for evidence and cannot invoke section 482 cr.p.c to quash the same.
S. 138 Appeal against conviction: Proclaimed offender can recall the proclamation by paying the amount directed by court
Head note: Cheque case conviction – Appeal admitted with the direction to deposit 20% of the total cheque amount – Accused deposited rupees thirty lakh
Section 138: When transaction already is within N.I Act then the transaction does not come within section 4 of the Tamilnadu prohibition of charging exorbitant interest Act, 2003
Section 138: When transaction already is within N.I Act then the transaction does not come within section 4 of the Tamilnadu prohibition of charging exorbitant interest Act, 2003.
Section 138 NI Act: Cheque itself is a promise to pay even if the debt is barred by time
N.I ACT: Initiation of criminal proceeding under sections 138 &141 N.I Act is covered under moratorium provision [U/S 14 IBC]
Section 138 NI Act: Unless the firm is added as primary accused the partner cannot be fasten vicarious criminal liability for firm
Question of law raised-The word ‘Every person’ in s. 141 N.I Act-Onus to prove who is vicariously liable for the company is on the complainant and not on the accused-The appellant cannot be convicted merely because he was a partner of the firm which had taken the loan or that he stood as a guarantor for such a loan-unless the company is added as accused the partner of the firm/company cannot be added as accused using vicarious liability in cheque cases.
Section 138 NI Act: Cheque filled by the complainant is not forgery
S. 138 N.I Act would note attract if the part payment made before encashment of the cheque issued for the original amount
The first respondent has made part-payments 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 first respondent cannot be deemed to have committed an offence under Section 138 of the Act when the cheque was dishonoured for insufficient funds.
Section 138 NI Act: Accused completely rebutted in the cheque case
Section 138 N.I Act CASES: Security cheque cases are admissible
Hon’ble Court settled that security cheque cases are admissible
