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Vijay Shivpad Erandole VS Ashwini Sharad Kavadi - Dishonour Of Cheque (2005)
"].Shailappan VS Sabitha - Crimes
"], ["2023 0 Supreme(Del) 12471"], ["2024 Supreme(Online)(KER) 38072"], ["KOYA KUTTY vs ASEES - Kerala"], ["2024 Supreme(Online)(KAR) 19677"], ["Vijay Shivpad Erandole VS Ashwini Sharad Kavadi - Dishonour Of Cheque (2005)
"], ["KOYA KUTTY vs ASEES - Kerala"]
In the world of financial transactions, cheques are common tools for settling debts, but what happens when family dynamics come into play? Imagine a scenario where a mother issues a cheque, but the gold ornaments in question were handed over to her son. Does this create a under ? This question often arises in cheque bounce cases, raising critical issues about existing liabilities versus security arrangements.
This blog post breaks down the legal principles, judicial precedents, and nuances from related cases to help you understand when such a cheque can lead to criminal prosecution. Note: This is general information based on case law and not specific legal advice. Consult a qualified lawyer for your situation.
penalizes the due to insufficient funds, but only if the cheque was issued for the or liability at the time of issuance. Courts consistently emphasize that:
Failure to meet this threshold means no offence under Section 138, even if the cheque bounces.
Consider the query: Cheque issued by mother of the accused....but gold ornaments were handedover to the son of the accused. can it be considered as a u/s 138 NI Act?
Main Legal Finding: Typically, no. A cheque issued by a mother for gold ornaments handed over to her son does not constitute a or liability at issuance. It resembles a security instrument rather than payment for an existing obligation. 2025 0 Supreme(Gau) 436
Indian courts, including the and , have upheld this view consistently:
These rulings prevent misuse of Section 138 for civil disputes disguised as criminal matters.
While the core principle holds, some cases involving gold ornaments show nuances:
These highlight that outcomes depend on evidence rebutting the Section 139 .
| Scenario | Likely Outcome Under Section 138 ||----------|---------------------------------|| Existing loan to mother, gold to son as security | May apply if debt proven 2025 Supreme(Online)(KER) 3717 || Pure security without prior debt | No offence 2025 0 Supreme(Gau) 436 || not rebutted | Conviction possible 2024 Supreme(Online)(AP) 20033 |
Vijay Shivpad Erandole VS Ashwini Sharad Kavadi
However, time-barred debts or unproven transactions fail. 2017 0 Supreme(Guj) 794
To avoid pitfalls:
In conclusion, while family transactions add complexity, judicial consistency favors scrutiny of the debt's existence. Stay informed, document meticulously, and consult professionals to navigate NI Act challenges effectively.
#Section138, #ChequeBounce, #NIACT
Section 138 , for the discharge of any debt or other liability unless the contrary is proved that there was no legally enforceable debt or liability. ... Complainant has succeeded in establishing that Ext.P1 cheque issued by the accused in discharge of a legally enforceable debt was dishonoured for the reason 'account closed' and there was no sufficient funds in that account. ... The learned couns....
the execution and issuance of Ext.P1 cheque by the accused in discharge of a legally enforceable debt. ... As per the complaint towards discharge of a debt, the accused issued a cheque dated 19.12.2005 for Rs.1,00,000/- to the complainant. ... Act mandates a presumption that the cheque was for the discharge of any debt or other liability. ... PW1 further stated in cross examinati....
by way of advance payment against a purchase order cannot be considered as a cheque issued towards the discharge of legally cheque issued as security cheque could not be considered as a worthless piece of paper and can attract an offence under Section 138 of the NI Act. ... The Court interpreted the term legally enforceable debt when the cheques are #H....
But for the fact that the accused did not enter into witness box nor placed any record or piece of paper to show that he is not liable to discharge the legally enforceable debt towards worth of gold ornaments pledged by the complainant under the accused. ... Even after receipt of the same under Exs.P.6 and P.7 acknowledgments, the accused did not make any payment, which all shows that the Ex.P.3 cheque was issued b....
The learned counsel for the appellant/complainant would refer to the evidence of PW1 and PW3 to contend that the cheque was issued by the first respondent/accused in the discharge of a legally enforceable debt arising out of a transaction where he had sold gold ornaments to the first respondent/accused ... According to her, the appellant/complainant had surreptitiously come into possession of Exhibit P1 cheque and ....
It was the contention of the accused that since the gold ornaments were not given to him as security for the loan, the cheque was dishonoured and therefore was no existing debt of liability. It was, therefore, contended that the provisions of section 138 of N.I. ... He submitted that if the consideration was Rs. 2,15,000/- there was no occasion to issue a cheque of Rs. 3 lakhs. He submitted that therefore the cheque was not #HL_STA....
It was the contention of the accused that since the gold ornaments were not given to him as security for the loan, the cheque was dishonoured and therefore was no existing debt of liability. It was, therefore, contended that the provisions of section 138 of N.I. ... He submitted that if the consideration was Rs. 2,15,000/- there was no occasion to issue a cheque of Rs. 3 lakhs. He submitted that therefore the cheque was not #HL_STAR....
It was the contention of the accused that since the gold ornaments were not given to him as security for the loan, the cheque was dishonoured and therefore there was no existing debt of liability. It was therefore contended that the provisions of section 138 of N. I. ... He submitted that if the consideration was Rs. 2,15,000/- there was no occasion to issue a cheque of Rs. 3 lakhs. He submitted that therefore the cheque was not #HL....
The presumption under Sections 118 and 139 of the N.I Act was also there, to show that Ext.P1 cheque was issued for valid consideration and towards discharge of a legally enforceable debt. Even then the trial court acquitted the accused and hence the impugned judgment is liable to be set aside. ... When a cheque is issued by a person, towards discharge of debt or liability, due from another person, taking over his ....
Even though accused contended that there was no legally enforceable debt and at the same time admitted that the cheque was issued towards a criminal case, the reason for executing and delivering the cheque was not satisfactorily explained. ... According to the complainant, accused had borrowed 35 sovereigns of gold ornaments from the complainant in the year 2002. A part of the gold ornam....
When the conviction and sentence imposed by the courts below against the revision petitioner/accused are based on untenable grounds, it would be just and proper for the High Court to interfere with the findings of the courts below in exercise of powers under Section 401 of the Cr.P.C. DW1 adduced evidence to prove that he issued several cheques in favour of the complainant pursuant to the transactions between the parties as security and one of the cheques was utilized by the complainant to file the complaint under Section 138 of the N.I.Act. Thus, the trial court as well as the appellate cou....
It could be in discharge of “any debt or other liability”. Section 138 of the N.I.Act nowhere provides that cheque drawn should be in discharge of drawer's liability alone. A cheque issued by a guarantor is also a cheque regarded by Section 138 of the N.I.Act as one being issued in discharge of legally enforceable debt.
Further, the accused did not deny the receipt of notice and did not issue any reply to rebut the presumption under Section 119 and 138 of Negotiable Instruments Act. Further, he would contend that the evidence of D.W.1 and Ex.D1 cannot be taken as substantive piece of evidence for proving the issuance of the cheque and another cheque during the year 2008 itself to one Kannan Finance. The accused never denied the issuance of the cheque and signature of the cheque and as such, to presumption under Section 138 of Negotiable Instruments Act proved that the cheque was issued for legally....
He has rebutted presumption supported by the documents and mainly the said documents were relied on by the complainant. It is true that issuance of cheque presupposes that there is a legally enforceable debt, but if accused could show that there is no due at all although cheques were issued to them, he does not come within the mischief of Section 138 NI Act. Therefore, it is crystal clear that the appellant/complainant failed to establish that there was any legally enforceable debt.
The High Court then went into the question whether issuance of cheque itself is a promise to pay time barred debt and referred to Sections 4 and 6 of the NI Act. After referring to certain judgments on the question of legally enforceable debt, the High Court stated that for the purpose of invoking Section 138 read with Section 142 of the NI Act, the cheque in question must be issued in respect of legally enforceable debt or other liability. 6. In our opinion, the High Court erred in quashing the complaint on the ground that the debt or liability was barred by limitation an....
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