Upheaval (Cognizance Book 1)

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V Galaxy Traders and Agencies Ltd. The court observed that the Act was enacted and section thereof incorporated with a specified object of making a special provision by incorporating a strict liability so far as the cheque, a negotiable instrument, is concerned. The law relating to the negotiable instruments is the law of commercial world legislated to facilitate the activities in trade and commerce making provision of giving sanctity to the instruments of credit which could be deemed to be convertible into money and easily passable from one person to another.

The offence under section is not a natural crime like hurt or murder. It is an offence created by a legal fiction in the statute. It is a civil liability transformed into a criminal liability, under restricted conditions by way of an amendment to the Act, which is brought into force only in Till then, the offending acts referred to in section constituted only a pure civil liability. Legitimately, the legislature thought it fit to provide for adequate safeguards in the Act to protect honest drawers from unnecessary harassment.

However, the sections to of the said Act were found deficient in dealing with dishonour of cheques. Thereby, the Negotiable Instruments Amendment and Miscellaneous Provisions Act, , inter alia, amended sections , and and inserted new sections to in the said Act.

These sections aimed at speedy disposal of cases relating to dishonour of cheque through their summary trial as well as making them compoundable. Punishment provided under section too was enhanced from one year to two years. These legislative reforms aimed at encouraging the usage of cheque and enhancing the credibility of the instrument so that the normal business transactions and settlement of liabilities could be ensured. What came into the forefront of all the disputed regarding section , was essentially with regard to the appropriate court in which the complaint could be filed by the payee in case a cheque has been dishonoured.

This jurisdiction issue has been interpreted by the courts from time to time and the law has witnessed a considerable number of changes throughout. The developments in the law relating to the dishonor of cheques have been traced further in the paper. The Section of the Negotiable Act, post amendment by the legislature in the year , specifically provides for all offences under the Chapter are to be tried by Judicial Magistrate of First Class or Metropolitan Magistrate hereinafter "MM" in accordance with the Summary Trial provisions of sections to of CrPC.

Lending Tree

It has been provided for that in a case under the section of the Act, the Magistrate is empowered to pass a sentence of imprisonment upto one year and fine exceeding Rs. It further provides that if at the commencement or during the course of summary trial, MM finds that nature of case was such that a sentence of imprisonment exceeding one year may have to be passed or for some other reason MM comes to conclusion that case should not be tried summarily, the Magistrate has to pass an order after hearing the parties, giving reasons as to why he would like to try the case not in a summarily manner but as a summon trial and he could recall witnesses who may have been examined and proceed with the case to hear it as a summon trial case.

The absence of the parties for the hearing or the absence of the respective advocates, were highly detrimental to the objective behind prescribing a summary procedure to be followed in cases of dishonour of cheques. Subsequently, in the case of Rajesh Agarwal v. State and Others 8 , the Hon'ble Delhi High Court prescribed certain guidelines with respect to the summary trial procedure which would be followed with respect to offences under section The summary trial procedure to be followed for offences under section , would thus be as under:.

The Act is silent on the matter pertaining to the relevant jurisdiction with respect to filing of criminal complaint in case the offence of Dishonour of the cheque is committed under Section Since the Criminal courts are approached, the issue needs to be examined from the point of view of the Criminal Procedure Code, Section of CrPC provides that " Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed ".

Section provides that " a When it is uncertain in which of several local areas an offence was committed, or b Where an offence is committed partly in one local area and party in another, or c Where an offence is a continuing one, and continues to be committed in more local area has one, or d Where it consists of several acts done in different local areas, It may be inquired to or tried by a court having jurisdiction over any of such local areas. Thus, in all the above situations, the court having jurisdiction over any of such local areas may try the offence. The jurisdiction is explained with reference to the Landmark cases of K.

There exists conflict between the two decisions inasmuch as in Bhaskaran's case supra it was held that the expression "giving of notice" occurring in proviso b to Section of the NI Act means "sending of notice" whereas in Harman's case supra it was held that the said expression means "receipt of notice". The Harman case has adopted a strict approach towards territorial jurisdictions of court.

It thus correctly addressed the rampant misuse of the liberal interpretation in Bhaskaran's case. The aforesaid Bhaskaran case had many unintended consequences.

Cognizance

As per the case, the cheque bouncing case can be registered either at locations, at the convenience of the payee as the cheque may be drawn at Location A, presented for payment and consequently dishonoured at Location B, and legal notice may be issued to the drawer of the cheque for payment of the cheque amount from his branch office located in Location C, as he may have several bank accounts in various places. This causes suffering to the drawer of the cheque, although gives flexibility to the payee of the cheque to choose the place where he was to file the cheque bouncing case.

Sometimes, several cheques are issued at the same time by a person to the same payee, which are deliberately presented in different banks located at different places, and thereafter, cheque bouncing cases are filed at different places against the drawer of those cheques. After the K. Bhaskaran judgement it was felt at large that the law in its wide expansive amplitude allowed the complainant to rather rampantly abuse and misuse the law to result in hardship and adversity to the drawer, with relative ease.

It gave the payee unrestricted power to the payee to singlehandedly confer jurisdiction on a place of his convenience, consequently, leading to harassment as the payer had, at times, no concern or relation with the distant places where the cheque was issued or which had no link to the transaction or drawer. The alteration in the law was thus welcomed as a much required change in prevalent laws as laid down by K.

The leniency thus, was the cause of much upheaval. Thus, the new judgement by means of a strict approach sought to discourage the payer from misusing or carelessly issuing cheques. Due sympathy was thus shown or given to the drawer.

Strategist says upheaval means a needed cleansing

In fact the Supreme Court in DashratRathod case has observed rightly that " Courts are enjoined to interpret the law so as to eradicate ambiguity or nebulousness, and to ensure that legal proceedings are not used as a device for harassment, even of an apparent transgressor of the law. Law's endeavour is to bring the culprit to book and to provide succour for the aggrieved party but not to harass the former through vexatious proceedings.

The court held that, the territorial jurisdiction acc. The return of the cheque by the drawer bank only constitutes commission of offence under section Hence, the courts within which drawer bank is located will only have the jurisdiction to try the case.

It may be noted that the Apex Court ruling in DashrathRathod case only takes care of traditional method of cheque clearance. As per this method the cheque physically travels from the bank branch where it is presented to the drawee bank branch. The decision thus posed difficulties in the modern day cheque truncation system, where the cheque does not travel to drawee bank.

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Financial institutions and banks pronounced difficulty in coping with the situation. It has been opined, in view of the rationale for changing the law with respect to jurisdiction under section of the negotiable instruments act, that:. The clarification of jurisdictional issues may be desirable from the equity point of view as this would be in the interests of the complainant and would also ensure a fair trial. The clarity on jurisdictional issue for trying the cases of cheque bouncing would increase the credibility of the cheque as a financial instrument. This would help the trade and commerce in general and allow the lending institution, including banks, to continue to extend financing to the economy, without the apprehension of the loan default on account of bouncing of a cheque.

Concerns had been raised by various stakeholders creditors, industry associations, financial institutions, etc expressing apprehensions that the DasrathRathod decision will offer undue protection to defaulters at the expense of the aggrieved complainant; and would ignore the current realities of cheque clearing with the introduction of CTS Cheque Truncation System.

In CTS cheque clearance happens only through scanned image in electronic form and cheques are not physically required to be presented to the issuing branch drawee bank branch but are settled between the service branches of the drawee and payee banks.

Alex Riese. XIV et XV. Berlin, Title cited under Hermes, Vol. Karl Jacoby. Text edition of Dio, Vol. Berichte der kgl. Dio, Vol. Dio as a source. Title just above. I, Seeschlacht d. Brutus geg. Pompejus, 36 v. Wiener Studien, , book 1. Papyrusforschung u. Wiener Studien, 22nd year, book 2. Wiener Studien, 22nd year, book 2, p. Apotheosis per Satiram Dio, LX, Wiener Studien, I, pp.

Munatius Plancus cp. Dio XLVI, It is incomplete and ends at L, 11, 3 of Dio. Columba Cassio Dione e del guerre galliche di Cesare. Rome under the Kings Two Books.

A Law Culture Diagnostic by Elkins - JCJPC, Volume 8, Issue 1

Book I, B. Book II, B.

crochcatemas.cf Rome under a Republic Thirty-nine Books. Book IV, B. Book V, B.

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