Reassessing Section 138 of the Negotiable Instruments Act: Contemporary Indian Jurisprudence

Reassessing Section 138 of the Negotiable Instruments Act: Contemporary Indian Jurisprudence

Introduction

Section 138 of the Negotiable Instruments Act, 1881 (hereinafter “NI Act”) has evolved into one of the most litigated penal provisions in Indian commercial law. Enacted by Act 66 of 1988, the section criminalises the dishonour of cheques, creating a unique fusion of civil liability and criminal sanction to fortify confidence in cheque-based transactions.[1] Over three decades, the Supreme Court and High Courts have refined the contours of the offence, balancing deterrence against misuse, procedural certainty against substantive justice, and commercial efficacy against constitutional safeguards. This article critically analyses the statutory text, the doctrinal pillars established by seminal precedent, and recent trends that signal the future trajectory of Section 138 litigation in India.

Statutory Framework

The core ingredients of the offence comprise:

  • drawing of a cheque on an account maintained by the drawer;
  • presentation of the cheque within six months (or its validity, whichever is earlier);
  • return of the cheque unpaid for insufficiency of funds, exceeding arrangement, or like reasons;
  • service of a written demand notice within thirty days of information of dishonour (Proviso (b)); and
  • failure of the drawer to pay within fifteen days of receipt of notice (Proviso (c)).

Only upon satisfaction of these cumulative conditions does the drawer “become deemed” to have committed an offence.[2] Ancillary provisions—Sections 139 (presumption), 140 (defences), 141 (company offences), 142 (cognizance & limitation), 143–147 (summary trial, compounding, evidence-on-affidavit, and ADR)—complete the statutory architecture.

Constituent Elements and Doctrinal Pillars

1. Service of Statutory Notice

The Supreme Court has adopted a purposive approach to “giving” notice. In K. Bhaskaran v. Vaidhyan Balan[3] and C.C Alavi Haji v. Palapetty Muhammed[4] service is presumed when a notice is dispatched by registered post to the correct address, invoking Section 27 of the General Clauses Act and Section 114 Ill.&(f) of the Evidence Act. The Court discarded any rigid requirement to plead the drawer’s act of evasion, shifting the burden to the accused to rebut the presumption of service. These rulings have virtually eliminated “notice-avoidance” as a viable defence, save where the accused discharges the onus of proving non-receipt through cogent evidence.

2. Presumption of Debt or Liability

Sections 118(a) and 139 statutorily invert the traditional burden of proof. While Krishna Janardhan Bhat v. Dattatraya Hegde[5] initially read down the presumption, the Constitution Bench-strength judgment in Rangappa v. Sri Mohan[6] clarified that the presumption extends to the existence of a legally enforceable debt. The drawer may rebut it on a preponderance of probabilities, but a mere ipse dixit will not suffice. Subsequent rulings—Kishan Rao v. Shankargouda[7] and Bir Singh v. Mukesh Kumar[8]—have reinforced this robust presumption, demanding a probable defence rooted in material evidence.

3. Territorial Jurisdiction

Jurisdictional confusion proliferated after Bhaskaran, which allowed trial at any of five loci (drawal, presentation, dishonour, notice, failure to pay). The Court curtailed forum shopping in Dashrath Rupsingh Rathod v. State of Maharashtra[9] by restricting jurisdiction to the drawee bank where dishonour occurs. Parliament partially reversed this by inserting Section 142(2) (Act 26 of 2015) restoring jurisdiction also to the bank branch of presentation. Consequently, practitioners must reconcile statutory amendments with Dashrath’s ratio for pre-2015 cheques while invoking Section 142(2) for subsequent instruments.

4. Limitation and Cause of Action

Limitation runs only after cause of action accrues on failure to pay within fifteen days of notice. Dalmia Cement v. Galaxy Traders[10] affirmed that a fresh limitation period arises with each statutory notice following successive presentations, provided the cheque remains within its validity. The Court however overruled Sadanandan Bhadran in MSR Leathers v. Palaniappan to permit multiple presentations and notices within the cheque’s currency, thereby privileging substantive settlement over procedural finality.

5. Corporate Criminality and Agency

Offences by companies trigger vicarious liability under Section 141. In MMTC Ltd. v. Medchl Chemicals[11] the Supreme Court upheld complaints filed by payees through authorised officers, emphasising the rebuttable nature of the presumption under Section 139. A.C Narayanan v. State of Maharashtra[12] subsequently sanctioned institution and verification of complaints by holders of power-of-attorney, subject to their personal knowledge of the transaction. These rulings liberalise standing while safeguarding against proxy abuse.

6. Effect of “Stop-Payment” Instructions

The argument that countermanding payment negates culpability was conclusively rejected in Modi Cements Ltd. v. Kuchil Kumar Nandi[13]. The Court held that once a cheque is drawn, any instruction to the bank—unless supported by a legitimate defence recognised under Section 139—will not erase liability if the other statutory ingredients are met.

7. Impact of Insolvency or Sickness Proceedings

A company’s “sick” status under the erstwhile SICA does not bar a Section 138 prosecution, as declared in Kusum Ingots v. Pennar Peterson[14]. Similarly, the Insolvency and Bankruptcy Code, 2016, while imposing moratoria against recovery actions, does not ipso facto stay criminal prosecution, a position recently reiterated in High Court jurisprudence.

8. Compounding and Alternative Dispute Resolution

Recognising the staggering docket of cheque-bounce cases—over 35 lakh pending— the Court in Meters & Instruments (P) Ltd. v. Kanchan Mehta[15] encouraged early compounding and invoked the summary powers under Section 143 to close proceedings upon full payment, even absent complainant consent in appropriate cases. The judgment harmonises the dual object—compensatory and punitive—underlying Section 138, pivoting the focus to restitution while unclogging criminal courts.

Critical Appraisal and Emerging Trends

The cumulative jurisprudence reveals a decisive pro-creditor tilt, manifested in (i) expansive presumptions, (ii) liberal rules on notice, and (iii) limited defences. Nevertheless, certain fault-lines persist:

  • Due Process Concerns: Critics argue that reverse onus provisions strain the presumption of innocence. The Supreme Court has sought to mitigate this by permitting rebuttal through probable defence and allowing cross-examination prior to framing notice (Hiten P. Dalal standard).
  • Forum Shopping Post-Amendment: Section 142(2) may revive multiplicity of jurisdiction; legislative clarity on exclusive forum would avert renewed litigation.
  • Digital Payments: With UPI and electronic fund transfers supplanting cheques, Parliament may eventually recalibrate Section 138 or enact a technology-neutral dishonour regime.
  • IBC Interface: Delineating the interplay between insolvency moratoria and criminal prosecutions remains a fertile ground for future constitutional challenges.

Conclusion

Section 138 of the NI Act exemplifies legislative pragmatism—melding civil and criminal remedies to safeguard commercial credibility. Judicial interpretation, while largely facilitative of the statute’s deterrent purpose, has striven to preserve fairness through calibrated presumptions, jurisdictional streamlining, and restorative compounding. The jurisprudential arc from Bhaskaran to Bir Singh evinces a maturation of doctrine that privileges transactional integrity without sacrificing procedural justice. As India’s payments ecosystem modernises, the judiciary and legislature must continue to adapt the Section 138 framework so that the law remains an efficacious but equitable sentinel of commercial trust.

Footnotes

  1. Statement of Objects and Reasons, Banking, Public Financial Institutions & Negotiable Instruments Laws (Amendment) Act 66 of 1988.
  2. Section 138, Negotiable Instruments Act, 1881.
  3. K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) 7 SCC 510.
  4. C.C Alavi Haji v. Palapetty Muhammed (2007) 6 SCC 555.
  5. Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008) 4 SCC 54.
  6. Rangappa v. Sri Mohan (2010) 11 SCC 441.
  7. Kishan Rao v. Shankargouda (2018) 8 SCC 165.
  8. Bir Singh v. Mukesh Kumar (2019) 4 SCC 197.
  9. Dashrath Rupsingh Rathod v. State of Maharashtra (2014) 9 SCC 129.
  10. Dalmia Cement (Bharat) Ltd. v. Galaxy Traders & Agencies (2001) 6 SCC 463.
  11. MMTC Ltd. v. Medchl Chemicals & Pharma (P) Ltd. (2002) 1 SCC 234.
  12. A.C Narayanan v. State of Maharashtra (2014) 11 SCC 790.
  13. Modi Cements Ltd. v. Kuchil Kumar Nandi (1998) 3 SCC 249.
  14. Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities (2000) 2 SCC 745.
  15. Meters & Instruments (P) Ltd. v. Kanchan Mehta (2018) 1 SCC 560.