During the course of business, one must have experienced the problem of Dishonour of Cheques. What is the remedy available when is cheque is dishonoured and how to file a case in the Court?
A Cheque has to be presented within the validity period. Once a cheque is dishonoured the payee receives a Memo from the bank informing about the reason for the dishonour of cheque. Payee/complainant shall make a demand for the payment of cheque amount by giving a notice in writing to the maker/drawer of the cheque within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid.
In case the Maker/drawer of the cheque fails to make the payment within fifteen days of the receipt of the said notice a Complaint case under section 200 Crpc read with Section 142(1)(a) of the Negotiable instruments Act, 1881 needs to be is filed within one month from the date cause of action arises i.e. expiry of the period of fifteen days.
A complaint case under Sec. 200 CrPC to prosecute for an offence under Sec. 138 Negotiable Instruments Act, 1881 is filed in the Court of the concerned Metropolitan Magistrate/Judicial Magistrate First Class. The Court will give an opportunity to complainant to lead pre- summoning evidence. Complainant needs to get himself and his witnesses examined in Pre-summoning evidence. In case the complaint is made through an authorized representative, he/she shall be examined in Pre-Summoning Evidence.
Sec. 145(1) N.I. Act, 1881 permits the complainant to lead evidence in the form of Affidavit. Accordingly, the complainant is required to prepare an affidavit making allegations, averments and exhibiting the documents relied upon. The affidavit needs to be sworn on oath or affirmation, before the Oath Commissioner who is appointed by the High Court under Sec. 3(2)(a) of the Oaths Act, 1969.
The said Affidavit is tendered by the complainant in Pre -Summoning evidence recorded under Sec. 200 CrPC. If the Court is satisfied that prima facie all ingredients to attract the offence under Sec. 138 Negotiate Instrument Act, 1881 are made out and the case is filed within the limitation period, the Court may summon the accused to appear and answer the charges.
