In India, a person issuing a cheque will be committing an
criminal offence if the cheque is dishonored (cheque bounce) for insufficiency
of funds. Cheque bounce offence is punishable with imprisonment for a term upto
two years or with a fine twice the amount of the cheque or both. Therefore, it
is important for small & medium sized businesses to understand their rights
& responsibilities of a cheque bounce and maintain financial discipline to
avoid such instances.
When a cheque is considered bounced?
A bank under certain conditions may refuse payment of cheque or
is bound to dishonor a cheque, in such instances the cheque is considered
bounced. When the cheque is dishonored for insufficiency of funds in the
account of a customer, that cheque bounce is treated as an offence and action
can be taken under Section 138 of The Negotiable Instruments Act.
What are the steps to initiate
prosecution for a cheque bounce?
To initiate prosecution under Section 138, three condition
precedents need to be fulfilled as below:
- The cheque should have been
presented to the bank within three months of its issue or within the
period of its validity. (The validity of cheques were considered to be six
months previously; however, Reserve Bank of India vide Reserve Bank of India vide Notification No.
RBI/2011-12/251DBOD.AML BC.No.47/14.01.001/2011-12 directed
that the validity period of cheques to be reduced from six months to three
months with effect from 1st April, 2012.).
- The payee [Person who receive the
money] should have made a demand to the Payor [Person who is liable to pay
the money] for payment by registered notice after the cheque is returned
unpaid.
- The Payor should have failed to pay
the amount within 30 days of the receipt of notice.
- If only all the above three
conditions are satisfied, prosecution can be launched for the offence
under Section 138.
How and when to give notice of
dishonor?
The payee has to make a demand for the payment of money to the
payor by giving a notice to the payor within 30 days of the receipt of
information by him from the bank regarding the return of the cheque as unpaid.
Therefore, to protect his rights under Section 138, the payee [affected party]
has to make a demand to the payor within 30 days by giving notice that the person
has a statutory oblication to make payment. As long as the payee sends a notice
to the payor at the correct address, the responsibilities of the payee are
considered to be fulfilled.
When prosecution can be
launched under Section 138?
Prosecution can be launched against the payor under Section 138,
if the payor failed to pay the amount within 30 days of the receipt of notice
from the payee. A Cheque Bounce Notice under Section 138 can
be found or generated using Make My Deed.
Who can the prosecution under
Section 138 be launched against?
Prosecution can be launched against the payor and in the case
where a company has committed an offence under Section 138, then not only the
company, but also every person who at the time when the offence was committed,
was in charge of and was responsible to the company shall be deemed to be
guilty of the offence and be liable to be proceeded against.
What are the other implications
of a cheque bounce?
In addition to the criminal offence, bounced cheques can also
impact credit worthiness or credit history. Though bounced cheques don’t
usually show up on traditional credit reports, they are reported on your bank
account statement. Banks both Nationalized & NBFC’s today require the
customer to furnish their bank statement for a period of upto 1 year for any
loan processing. Occurrence of many cheque bounces in a bank statement can affect
loan eligibility and credit worthiness.
How to avoid cheque bounces?
The best policy to avoid a cheque bounce in your account is to
NEVER write a cheque without money in your account. Providing a cheque to a
person is a firm financial commitment you make to the person which has a lot of
responsibilities and implication in case it is not honored. Therefore, it is
best not to provide a cheque to a person without money in your account-
just to temporarily avoid financial pressure.
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