Bharatiya Nagarik Suraksha Sanhita, 2023
Section 438 & 442—Revision—Jurisdiction—In the absence of perversity, it was not open to the High Court, in revisional jurisdiction, to upset the concurrent findings of the Trial Court and the Sessions Court.
[Paras 27 & 28]
Negotiable Instruments Act, 1881
Chapter XVII—Scope and Intent—Intent behind introducing Chapter XVII is to restore the credibility of cheques as a trustworthy substitute for cash payment and to promote a culture of using cheques—By criminalizing the act of issuing cheques without sufficient funds or for other specified reasons, the law promotes financial discipline, discourages irresponsible practices and allows for a more efficient and timely resolution of disputes compared to the previous pure civil remedy which was found to involve the payee in a long-drawn out process of litigation.
[Para 14]
Sections 118 & 139—Presumptions—Approach of court—Some District Courts and some High Courts are not giving effect to the presumptions incorporated in Section 118 and 139 of NI Act and are treating the proceedings under the NI Act as another civil recovery proceedings and are directing the complainant to prove the antecedent debt or liability—Such an approach is not only prolonging the trial but is also contrary to the mandate of Parliament.
[Para 21]
Section 138—Dishonour of cheque—Debt created by a cash transaction above rupees twenty thousand—Whether legally enforceable debt—Any breach of Section 269SS of the Income Tax Act is subject to a penalty only under Section 271D of the IT Act—Neither Section 269SS nor 271D of the IT Act state that any transaction in breach thereof will be illegal, invalid or statutorily void—Any violation of Section 269SS of the IT Act would not render the transaction unenforceable under Section 138 of the NI Act or rebut the presumptions under Sections 118 and 139 of the NI Act because such a person, assuming him/her to be the payee/holder in due course, is liable to be visited by a penalty only as prescribed—View that any cash transaction above rupees twenty thousand is illegal and void and therefore does not fall within the definition of ‘legally enforceable debt’ cannot be countenanced.
[Para 20]
Section 138—Dishonour of cheque—Acquittal—Once execution of cheque is admitted, the presumption under Section 118 of the NI Act that the cheque in question was drawn for consideration and the presumption under Section 139 of the NI Act that the holder of the cheque received the said cheque in discharge of a legally enforceable debt or liability arises against accused—Accused has filed no documents and/or examined any independent witness or led any evidence with regard to the financial incapacity of appellant-complainant to advance the loans in question—When the evidence of appellant-complainant is read in its entirety, like it should be, it cannot be said that appellant-complainant had no wherewithal to advance any loan to the accused—Fact that accused has failed to reply to the statutory notice under Section 138 of the NI Act leads to an inference that there is merit in the appellant-complainant’s version—Defence of financial incapacity of appellant-complainant advanced by accused is an afterthought—Even the accused’s defence that a signed blank cheque was issued by him so as to enable his friend/appellant-complainant to obtain a loan from a bank was sufficient to rebut the presumptions under Section 118 and 139 of the NI Act is unbelievable and absurd—Acquittal set aside.
[Paras 15, 22, 23, 29, 31, 32 & 40]
Section 138—Dishonour of cheque—There shall be no requirement to issue summons to the accused in terms of Section 223 of BNSS i.e., at the pre-cognizance stage.
[Para 35]
Section 138—Dishonour of cheque—Massive backlog of cheque bouncing cases—Speedy trial of cases—Guidelines and directions issued.
[Paras 33 to 36]
Sections 138 & 147—Dishonour of cheque—Guidelines issued by the Apex Court for compounding of offence modified/revised as under : (a) If the accused pays the cheque amount before recording of his evidence (namely defence evidence), then the Trial Court may allow compounding of the offence without imposing any cost or penalty on the accused; (b) If the accused makes the payment of the cheque amount post the recording of his evidence but prior to the pronouncement of judgment by the Trial Court, the Magistrate may allow compounding of the offence on payment of additional 5% of the cheque amount with the Legal Services Authority or such other Authority as the Court deems fit; (c) Similarly, if the payment of cheque amount is made before the Sessions Court or a High Court in Revision or Appeal, such Court may compound the offence on the condition that the accused pays 7.5% of the cheque amount by way of costs; and (d) Finally, if the cheque amount is tendered before this Court, the figure would increase to 10% of the cheque amount.
[Paras 37 & 38]