Negotiable Instrument Act, 1881

 

Negotiable
Instrument Act, 1881


Sections 138,
123A- When a Cheque is crossed and
made as accounts payee-

It does not lose the character of a
negotiable instrument. Crossing of a cheque as accounts payee makes the cheque
not negotiable but payable through the Bank of the payee. Such crossing does
not render the cheque as not a negotiable instrument and as such the cheque is
governed by the Negotiable Instrument Act, 1881. The learned judges of the High
Court Division held the case instituted under the Negotiable Instrument Act as
perfectly maintainable notwithstanding the crossing of the cheque in question
as accounts payee.

Sahabuddin (Md) Vs. The State and
another 25 MLR (2010) (HC) 467.

 

Negotiable
Instruments Act, 1881

Section 138- Dishonor of cheque
constitutes punishable offence

Insufficient fund in the account or
the stopping the payment by the drawer subsequently, equally amounts to
dishonor and as such are held punishable offence. When the prima facie evidence as to the cheque being dishonored is available
on the record, the proceedings cannot be quashed. High Court Division exercises
its jurisdiction under section 561A Cr.P.C. sparingly. The apex court
discouraged the frequent approach of the parties to invoke inherent jurisdiction
of High Court Division on inappropriate and flimsy grounds.

Faridul Alam Vs. The State and another 12 MLR (2007) (AD) 132.

 

Negotiable Instrument Act, 1881

Section 138 –Cheque though given as performance guarantee
when dishonored constitutes punishable offence

In the instant case the cheque in
question was given as security for performance guarantee in connection with a
contract for supply of goods. When the appellant failed to supply the goods the
cherub was presented to the Bank which was dishonored. The apex court found
there is prima facie case
constituting the offence and as such dismissed the appeal.

S.M. Emdadul Hossain (Babul) Vs. Jinnur Hossain and another 15 MLR (2010)
(AD) 31.

Negotiable Instrument Act, 1881

Section 138– Compliant or FIR when does not contain the
date of cause of action or disclose any offence – Proceedings can be quashed even before
taking cognizance when the complaint or the FIR if taken at their face
value does not disclose or constitute any offence.

Emdadul Hasan Chowdhury (Md.) Vs.
Kozvsar Ahmed and another 12 MLR (2007) (HC) 279.

Negotiable
Instrument Act, 1881

Section 138– the proceedings cannot be quashed on the
basis of defense materials

Code of Criminal Procedure, 1898

Section 561A– When the trial has already commenced and
witness examined, the proceedings cannot be quashed.

When the offence is admitted by the
accused the proceedings cannot be interfered with merely on some minor
technicalities of non-mention of date of receipt of notice or the cause of
action which can be gathered from the allegations contained in the complaint.

Iddris Sheikh (Md.) Vs. The State 13
MLR (2008) (HC) 223.

 

Negotiable Instrument Act, 1881

Section 138– When particulars of notice are stated in
evidence during trial, the defect as alleged is held Cured. In the instant case the trial has
already began and the witnesses are examined. At this stage the learned judge
of the High Court Division refused to quash the proceedings.

Alauddin (Md.) Vs. Md. Abbasuddin and
another 14 MLR (2009) (HC) 42.

Negotiable
Instrument Act, 1881

Section 138– Complaint to be lodged within thirty days of
the receipt of the notice as to the dishonor of the cheque.

When the trying Magistrate discharged
the accused on the ground of depositing  the entire
amount of the cheque since dishonored, the learned judges of the High Court
Division held the said order perfectly justified and quashed the impugned order
passed by the Metropolitan Additional Sessions Judge in setting aside the order
of discharge.

Sabrina Chowdhury (Mrs.) Vs. State and
another 14 MLR (2009) (HC) 161.

 

Negotiable Instrument Act, 1881

Section 138A- Imposes condition of
depositing 50% of the amount of dishonored cheque in the court before filing
appeal against the conviction and sentence

In a good number
of cases the Appellate Division of the Supreme Court held the similar
provisions of the Artha Rin Adalat Ain not unconstitutional and vocative of
fundamental rights. The learned judges of the High Court Division in the
instant case on similar consideration also held the provisions of section 138A
of the Negotiable Instrument Act, 1881 as not ultra vires of the constitution.

A.J.M Helal and others Vs. Bangladesh
and others 14 MLR (2009) (HC) 227.

 

Negotiable Instrument Act, 1881

Section 138– Issuance 0f
cheque without sufficient fund available in the account and the dishonor
thereof constitutes punishable offence.

Section 140- Managing Director and
other directors are liable to be prosecuted

In a case in respect of offence punishable under section 138 of the Negotiable Instrument Act, 1881, where there is no procedural defect and the complaint is lodged after compliance with all the requirements of law and the cognizance of the offence is taken hereunder
such proceedings is not liable to be quashed. Moreover the application under
section 561A of Cr.P.C. filed before framing of the charge is rejected as being one premature.

Sahajahan Bhuiya and others Vs. The
State and another 11 MLR (2006) (HC) 341.

Negotiable
Instrument Act, 1881

Sections 138 and 141 – Lodging of
complaint before expiry of the statutory period held illegal.

The drawer of the cheque dishonored
when presented to the bank for encashment, is entitled to get a statutory
period of 30 days from the date of receipt of the notice thereof to make
arrangement for payment of the money. In the instant case the complaint was
lodged before the expiry of 30 days and as such it was incompetent for want of
cause of action. The learned judges of the High Court Division found the
proceedings illegal and accordingly quashed the same. However the learned
judges further held that the offence under section 420 of the Penal Code has
been disclosed and the complainant can institute criminal case u/s 420 of Penal
Code as well as civil suit for recovery of the money in
question.

Jubayer (Md.) Vs. The State and others 15 MLR (2010) (HC) 424.

 

Negotiable Instrument Act, 1881

Section 138 – Offence of issuing cheque without sufficient
fund

Code of Criminal Procedure, 1898

Section 561A – Quashment of proceedings
not permissible when there is no illegality in the proceedings

In a case where the proceedings are
drawn after compliance with all legal requirements and the proceedings does not
suffer from any legal infirmity, such proceedings cannot be quashed.

Amir Hossain (Md.) Vs. The State 11
MLR (2006) (HC) 373.

 

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