On 2nd August 2018, the Negotiable Instruments (Amendment) Act, 2018 (“NI Amendment Act, 2018”) has been notified to provide further protection to the recipients and holders of cheques in ‘cheque bounce’ cases.
In 1881, the Negotiable Instruments Act, 1881 (“NI Act”) was enacted to consolidate the laws pertaining to promissory note, bills of exchanges and cheques and to provide speedy disposal of cases relating to dishonour of cheques. Under the provisions of the NI Act, if a cheque drawn by the drawer (person who writes the cheque) on an account maintained by him with a bank(towards discharge of his debt or liability in whole or in part), is dishonoured by the bank; then the drawee (person in whose favour cheque is issued) of the cheque is entitled to initiate criminal proceedings against the issuer of the cheque before the Metropolitan Magistrate or Judicial Magistrate of First Class. Further, these cases are to be disposed of by the Metropolitan Magistrate or Judicial Magistrate of First Class in accordance with the provisions of summary trial under the Code of Criminal Procedure 1973.
The NI Act endeavoured to protect the rights and interests of recipients of cheques but failed to have adequate deterrent effect on defaulters. Unscrupulous issuers of cheques took advantage of the lack of any effective mechanism to prevent the dishonour of cheques, and were able to easily adopt delaying tactics such as instituting appeals, obtaining stays on the order of conviction etc. The pendency of the numerous cheque bouncing cases has now resulted in the Legislature introducing the amendment with some stringent measures to prevent dishonour of cheques and address delays in resolution of claims. Accordingly, the NI Amendment Act, 2018 (which was introduced in December 2017 before the Lok Sabha) has been now notified to strengthen the credibility of cheques and help trade and commerce.
The NI Amendment Act, 2018 has brought two significant amendments to the NI Act, i.e. introduction of section 143A and 148 for providing interim compensation during the pendency of the criminal complaint and the criminal appeal. Under the new amendment, the Magistrate Court is now empowered to direct the issuer of a cheque to pay upto20% of the amount of the cheque as interim compensation to the recipient of a cheque. The Magistrate Court is empowered to direct the payment of interim compensation upon framing of charges against the issuer of a cheque, or in case of a summary trial, on the issuer of a cheque pleading ‘not-guilty’. This amount has to be paid within 60 days, which can be extended by a further period of 30 days. The amendment also provides for the recipient to refund the interim compensation with interest if the issuer is acquitted and the case is dismissed. The interest has to be paid at the bank rate of Reserve Bank of India, prevailingat the beginning of the financial year within 60 days from date of the order. The said period can also be extended by the Court on sufficient grounds. In this manner, the Legislature has ensured that not only are the rights of recipients of cheques protected but additionally innocent issuers of cheques are also protected by the new amendment. The interim compensation payable under this section may be recovered as if it were a fine under section 421 of the Code of Criminal Procedure, 1973. Also, the final compensation if awarded to the recipient on the disposal of the case will be after deducting the interim compensation.
This protection also extends to the appeal period. The appellate court is empowered to order the issuer of a cheque to deposit an amount which shall be a minimum of 20% of the fine or compensation awarded by the Magistrate Court in the appeal preferred against his conviction. Although this is not a pre-requirement to filing the appeal and can be ordered anytime during the pendency of the appeal, is still a very well thought measure against the frivolous litigations initiated by the dishonest issuers. The procedure relating to payment of the said fine and refund of the same if the appeal succeeds is similar to the conditions laid down in section 143A of the NI Amendment Act, 2018.
It is indeed a good attempt by the Legislature to provide some solace to the recipients of cheques, who get stuck in the long-drawn litigation battles effecting the credibility of the cheques (especially post-dated cheques) in their commercial activities. Although the percentage of interim compensation to be awarded is low, it is good to see that the Government has finally been able to address the problems faced by holders of cheques.
Author:
Saumya Brajmohan, Solomon &Co., Advocates & Solicitors
Saumya Brajmohan is an Associate in the Litigation & Dispute Resolution Team of Solomon & Co. She is registered with the Bar Council of Maharashtra and Goa since 2014. Prior to joining Solomon & Co., she was working with a law firm where she specialized in civil and commercial litigation and arbitration. She has regularly appeared before the Hon’ble Bombay High Court, City Civil Court as well as various Tribunals.
At Solomon & Co. her primary area of practice is civil litigation and alternate dispute resolution. She regularly appears before the Hon’ble Bombay High Court and City Civil Court.
