When the cheque bounces, the first step is to send the cheque bounce notice to the drawer and request him to pay the amount. If he does not comply with the notice, then legal action can be taken against him. For initiating legal action and filing a suit in the court against the drawer, the following conditions must be satisfied-
If the above conditions are satisfied, then legal proceedings can be initiated in the court within thirty days from the expiry of fifteen days time period for cheque amount payment after receipt of cheque bounce notice by the drawer. The suit for cheque bounce can be initiated in the court of the city where the cheque was presented for payment. The case will be filed under Section 138 of the Act.
Section 138 of the Negotiable Instruments Act provides that cheque bounce for insufficient funds is an offence and punishable with imprisonment. It provides that where a person draws a cheque on an account maintained by him for the payment of money to another person, and it is returned by the bank unpaid because of insufficient funds to honour the cheque, the drawer of the cheque commits an offence.
The person must draw the cheque for discharge of any legally enforceable debt or liability. The cheque must be returned by the bank because the amount of money standing to the credit of the drawer’s account is insufficient or exceeds the amount arranged to be paid from the drawer’s account by an agreement made with the bank.
The drawer can be punished with imprisonment for a term not exceeding two years or a fine that can extend to twice the amount of the cheque, or both for the offence of cheque bounce.
Section 144 of the Negotiable Instruments Act provides that where cheque bounce has taken place by cheque issued by a company, then every person in charge and responsible for the conduct of the business of the company at the time the offence was committed is guilty of an offence. This section provides that the cheque bounce for insufficient funds is an offence when the drawer of the cheque is a company.
When the drawer of the bounced cheque is a company, every person in charge and responsible for conducting the business of the company and the company is guilty of the offence of cheque bounce and can be punished accordingly.
Where a cheque bounce offence is committed by a company, and it is proved that the offence was committed by the company with the consent, negligence or convenience of the director, secretary, manager or other officers of the company, such persons will be deemed guilty and liable to be punished accordingly.
Only the payee can issue the notice under Section 138 to the defaulting drawer. However, the payee can issue the notice under Section 138 of the Negotiable Instruments Act through an advocate or legal firm.
When the drawee bank finds out that it is not possible to pay the cheque amount to the payee due to any reason, it issues a ‘Cheque Return Memo’ to the banker of the payee mentioning the reason for non-payment. The payee’s banker then gives the dishonoured cheque and the memo to the payee. When the payee receives the cheque return memo and the dishonoured cheque, the cheque is considered bounced.
The cheque return memo is a memo informing the payee’s banker and the payee about the dishonour of a cheque. When the cheque is dishonoured, the drawee bank immediately issues a cheque return memo to the payee’s banker mentioning the reason for non-payment. If the reason for non-payment of the cheque is insufficient funds, the payee can issue a notice under Section 138 to the drawer.
Yes since the dishonour of a cheque under Section 138 is a bailable offence. A bailable offence means that a person can get bail if a complaint is made against him. But, in the case where after getting bail, a person fails to appear before the court on the specified date, the court can issue a non-bailable warrant against him/her. The police can arrest the person in case of a non-bailable warrant.
After dishonour of cheque, a chance will be given to the drawer to honour the same cheque in the form of a written notice to immediately repay the cheque amount. The notice period of 15 days will be specified in the notice sent to the drawer. There will be no offence committed by the drawer if he/she pays the complete amount within the said notice period of 15 days.
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