1.Short title. —This Act may be called the Negotiable Instruments Act 1881.
Local extent, Saving of usage relating to hundis, etc., Commencement. — It extends to the whole of India [ * * * ]; but nothing herein contained affects the [Indian Paper Currency Act, 1871 (3 of 1871), Section 2] or affects any local usage relating to any instrument in an oriental language: Provided that such usages may be excluded by any words in the body of the instrument, which indicate an intention that the legal relations of the parties thereto shall be governed by this Act; and it shall come into force on the first day of March, 1882.
- Repeal of enactments. —[Rep. by the Amending Act, 1891 (12 of 1891).
- Interpretation clause. —In this Act —
“Banker” — “banker” includes any person acting as a Banker and any post office saving bank.
OF NOTES, BILLS AND CHEQUES
- “Promissory note”. —A “promissory note” is an instrument in writing (not being a bank-note or a currency-note) containing an unconditional undertaking signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument.
A signs instruments in the following terms: —
(a) “I promise to pay B or order Rs. 500.”
(b) “I acknowledgement myself to be indebted to B in Rs. 1,000, to be paid on demand, for value received.”
(c) “Mr. B.I.O.U. Rs. 1,000.”
(d) “I promise to pay B Rs. 500 and all other sums which shall be due to him.”
(e) “I promise to pay B Rs. 500 first deducting there out any money which he may owe me.”
(f) “I promise to pay B Rs. 500 seven after my marriage with C.”
(g) “I promise to pay B Rs. 500 on D‘s death, provided D leaves me enough to pay that sum.”
(h) “I promise to pay B Rs. 500 and to deliver to him my black horse on 1st January next.”
The instruments respectively marked (a) and (b) are promissory notes. The instruments respectively marked (c), (d), (e), (f), (g) and (h) are not promissory notes.
Promissory Note — In order to find out whether an instruments is a promissory note or not, its terms must be explained. There must be an express undertaking to pay the amount mentioned in the instrument before it can be held to be a promissory note. A mere implied undertaking by the use of the word “debt” or “pronote” in the instrument is not sufficient. (Brij Kishore Rai v. Lakhan Tewari, AIR 1978 ALL 314).
- “Bill of exchange”. —A “bill of exchange” is an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum of money only to, or to the order of, a certain person or to the bearer of the instrument.
A promise or order to pay is not “conditional”, within the meaning of this section and Section 4, by reason of the time for payment of the amount or any instalment thereof being expressed to be on the laps of a certain period after the occurrence of a specified event which, according to the ordinary expectation of mankind, is certain to happen, although the time of its happening may be uncertain.
The sum payable may be “certain”, within the meaning of this section and Section 4, although it includes future interest or is payable at an indicated rate of exchange, or is according to the course of exchange, and although the instrument provides that, on default of payment of an instalment, the balance unpaid shall become due.
The person to whom it is clear that the direction is given or that payment is to be made may be a “certain person”, within the meaning of this section and Section 4, although he is mis-named or designated by description only.
- “Cheque”. —A “cheque” is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand.
- “Drawer” “drawee”. —The maker of a bill of exchange or cheque is called the “drawer”, the person thereby directed to pay is called the “drawee”.
“drawee in case of need”. — When in the bill or in any indorsement thereon the name of any person is given in addition to the drawee to be resorted to in case of need such person is called a “drawee in case of need”.
“acceptor”. — After the drawee of a bill has signed his assent upon the bill, or, if there are more parts thereof than one, upon one of such parts, and delivered the same, or given notice of such signing to the holder or to some person on his behalf, he is called the “acceptor”.
“acceptor for honour”. — When a bill of exchange has been noted or protested for non-acceptance or for better security, and any person accepts it supra protest for honour of the drawer or of any one of the indorser, such person is called an “acceptor for honour.”
“Payee”. — The person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid, is called the “payee”.
- “Holder”. —The “holder” of a promissory note, bill of exchange or cheque means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto.
Where the note, bill or cheque is lost or destroyed, its holder is the person so entitled at the time of such loss or destruction.
- “Holder in due course”. —“Holder in due course” means any person who for consideration became the possessor of a promissory note, bill of exchange to cheque if payable to bearer, or the payee or indorse thereof, if payable to order before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title.
- “Payment in due course”. —“Payment in due course” means payment in accordance with the apparent tenor of the instrument in good faith and without negligence to any person in possession thereof under circumstances which do not afford a reasonable ground for believing that he is not entitled to receive payment of the amount therein mentioned.
- “Inland instrument.” —A promissory note, bill of exchange or cheque drawn or made in India and made payable in, or drawn upon any person resident in, India shall be deemed to be an inland instrument.
- “Foreign instrument.” —Any such instrument not so drawn, made or made payable shall be deemed to be a foreign instrument.
- “Negotiable instrument.” —(1) A “negotiable instrument” means a promissory note, bill of exchange or cheque payable either to order or to bearer.
Explanation I. — A promissory not, bill of exchange or cheque is payable to order which is expressed to be so payable or which is expressed to be payable to a particular person, and does not contain words prohibiting transfer or indicating an intention that it shall not be transferable.
Explanation II. — A promissory note, bill of exchange or cheque is payable to bearer which is expressed to be so payable or on which the only or last indorsement is an indorsement in blank.
Explanation III. — Where a promissory note, bill of exchange or cheque, either originally or by indorsement, is expressed to be payable to the order of a specified person, and not to him or his order, it is nevertheless payable to him or his order at his option.
(2) a negotiable instrument may be made payable to two or more payees jointly, or it may be made payable in the alternative to one of two, or one or some of several payees.
Hundi is a negotiable instrument. (Nizamuddin v. Jugal Kishore, AIR 1996 Rajasthan 207).
- Negotiation. —When a promissory note, bill of exchange or cheque is transferred to any person, so as to constitute the person the holder thereof, the instrument is said to be negotitated.
- Indorsement. —When the maker or holder of a negotiable instrument signs the same, otherwise than as such maker, for the purpose of negotiation, on the back or face thereof or on a slip of paper annexed thereto, or so signs for the purpose a stamped paper intended to be completed as a negotiable instrument, he is said to indorse the same, and is called the “indorser”.
- Indorsement “in blank” and “in full”-”Indorsee”. —(1) If the indorser signs his name only, the indorsement is said to be “in blank”, if he adds a direction to pay the amount mentioned in the instrument to, or to the order of, a specified person, the indorsement is said to be “in full”, and the person so specified is called the “indorsee” of the instrument.
(2) The provisions of this Act relating to a payee shall apply with the necessary modifications to an indorsee.
- Ambiguous instruments. —Where an instrument may be construed either as a promissory note or bill of exchange, the holder may at his election treat it as either and the instrument shall be henceforward treated accordingly.
- Where amount is stated differentlyin figures and words. — If the amount undertaken or ordered to be paid is stated differently in figures and in words, the amount stated in words shall be the amount undertaken or ordered to be paid.
Where there is difference in the words between the sum expressed in words and the figures mentioned in the instrument, the amount mentioned in words will be taken to be the sum for which the instrument was made payable. The mandatory nature of Section 18 gives no choice to the courts to give preference to the sum mentioned in figures over the amount mentioned in words. [The Jammu & Kashmir Bank Ltd. v. Gazi Taj Din, AIR 1954 J & K 56 (FB).]
- Instruments payable on demand. —A promissory note or bill of exchange, in which no time for payment is specified, and a cheque, are payable on demand.
- Inchoate stamped instruments. —Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in [India], and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.
- “At sight”, “On presentment”, “After sight”. —In a promissory note or bill of exchange the expressions “at sight” and “on presentment” means on demand. The expression “after sight” means, in a promissory note, after presentment for sight, and, in a bill of exchange after acceptance, or nothing for non-acceptance, or protest for non-acceptance.
- “Maturity”. —The maturity of a promissory note or bill of exchange is the date at which it falls due.
Days of grace. — Every promissory note or bill of exchange which is not expressed to be payable on demand, at sight or on presentment is at maturity on the third day after the day on which it is expressed to be payable.
- Calculating maturity of bill or note payable so many months after date or sight. —In calculating the date at which a promissory note or bill of exchange, made payable at stated number of months after date or after sight, or after a certain event, is at maturity, the period stated shall be held to terminate on the day of months which corresponds with the day on which the instrument is dated, or presented for acceptance or sight, or noted for non-acceptance, or protested for non-acceptance, or the event happens, or, where the instrument is a bill of exchange made payable a stated number of months after sight and has been accepted for honour, with the day on which it was so accepted. If the month in which the period would terminate has no corresponding day, the period shall be held to terminate on the last day of such month.
(a) A negotiable instrument dated 29th January, 1878, is made payable at one month after date. The instrument is at maturity on the third day after the 28th February, 1878.
(b) A negotiable instrument, dated 30th August, 1878, is made payable three months after date. The instrument is at maturity on the 3rd December, 1878.
(c) A promissory note or bill of exchange dated 31st August, 1878, is made payable three months after date. The instrument is at maturity on the 3rd December, 1878.
- Calculating maturity of bill or note payable so many days after date or sight. —In calculating the date at which a promissory note or bill of exchange made payable a certain number of days after date of after sight or after a certain event is at maturity, ithe day of the date, or of presentment for acceptance or sight, or of protest for non-acceptance, or on which the event happens, shall be excluded.
- When day of maturity is a holiday. —When the day on which a promissory note or bill of exchange is at maturity is a public holiday, the instrument shall be deemed to be due on the next preceding business day.
Explanation — The expression “Public holiday” includes Sunday: and any other day declared by the Central Government by notification in the Official Gazette, to be a public holiday.
PARTIES OT NOTES, BILLS AND CHEQUES
- Capacity to make, etc., promissory notes, etc. —Every person capable of contracting, according to the law to which he is subject, may bind himself and be bound by the making, drawing, acceptance, indorsement, delivery and negotiation of a promissory note, bill of exchange or cheque.
Minor. — A minor may draw, indorse, deliver and negotiate such instruments to as to bind all parties except himself.
Nothing herein contained shall be deemed to empower a corporation to make, indorse or accept such instruments except in cases in which, under the law for the time being in force, they are so empowered.
- Agency. —Every person capable of binding himself or of being bound, as mentioned in Section 26, may so bind himself or be bound by a duly authorized agent acting in his name.
A general authority to transact business and to receive and discharge debts does not confer upon an agent the power of accepting or indorsing bill of exchange so as to bing his prinicipal.
An authority to draw bills of exchange does not of itself import an authority to indorse.
- Liability of agent signing. —An agent who signs his name to a promissory note, bill of exchange or cheque without indicating thereon that he signs as agent, or that he does not intend thereby to incur personal responsibility, is liable personally on the instrument, except to those who induced him to sign upon the belief that the principal only would be held liable.
- Liability of legal representative signing. —A legal representative of a deceased person who signs his name to a promissory note, bill of exchange or cheque is lable personally thereon unless he expressly limits his liability to the extent of the assets received by him as such.
- Liability of drawer. —The drawer of a bill of exchange or cheque is bound in case of dishonour by the drawee or acceptor thereof, to compensate the holder, provided due noticve of dishonour has been given to, or received by, the drawer as hereinafter provided.
- Liability of drawee of cheque. —The drawee of a cheque having sufficient funds of the drawer in his hands properly applicable to the payment of such cheque must pay the cheque when duly required so to do, and, in default of such payment, must compensate the drawer for any loss or damage caused by such default.
- Liability of maker of note and acceptor of bill. —In the absence of a contract to the contrary, the maker of a promissory note and the acceptor before maturity of a bill of exchange are bound to pay the amount thereof at maturity according to the apparent tenor of the note or acceptance respectively, and the acceptor of a bill of exchange at or after maturity is bound to pay the amount thereof to the holder on demand.
In default of such payment as aforesaid, such maker or aceptor is bound to compensate any party to the note or bill for any loss or damage sustained by him and caused by such default.
- Only drawee can be acceptor except in need or for honour. —No person except the drawee of a bill of exchange, or all or some of several drawees, or a person named therein as a drawee in case of need, or an acceptor for honour, can bind himself by an acceptance.
- Acceptance by several drawees not partners. —Where there are several drawees of a bill of exchange who are not partners, each of them can accept it for himself, but non of them can accept it for another without his authority.
- Liability of indorser. —In the absence of a contract to the contrary, whoever indorses and delivers a negotiable instrument before maturity, without, in such indorsement, expressly excluding or making conditional his own liability, is bound thereby to every subsequent holder, in case of dishonour by the drawee, acceptor or maker, to compensate such holder for any loss or damage caused to him by such dishonour, provided due notice of dishonour has been given to, or received by, such indorser as hereinafter provided.
Every indorser after dishonour is liable as upon an instrument payable on demand.
- Liability of prior parties to holder in due course. —Every prior party to a negotiable instrument is liable thereon to a holder in due course until the instrument is duly satisfied.
- Maker, drawer and acceptor principals. —The maker of a promissory note or cheque, the drawer of a bill of exchange until acceptance, and the acceptor are, in the absence of a contract to the contrary, respectively liable thereon as principal debtors, and the other parties thereto are liable thereon as sureties for the maker, drawer or acceptor, as the case may be.
- Prior party a principal in respect of each subsequent party. —As between the parties so liable as sureties, each prior party is, in the absence of a contract to the contrary, also liable thereon as a principal debtor in repect of each subsequent party.
A draws a bill payable to his own order on B, who accepts, A afterwards indorses the bill to C, C to D, to E. As between E and B, B is the prinicipal debtor, and A, C and D are his sureties. As between E and A, A is the principal debtor, and C and D are the sureties. As between E and C, C is the principal debtor and D is his surety.
- Suretyship. —When the holder of an accepted bill of exchange enters into any contract with the acceptor which, under Section 134 or 135 of the Indian Contract Act, 1872 (9 of 1872), would discharge the other parties, the holder may expressly reserve his right to charge the other parties, and in such case they are not discharged.
- Discharge of indorser’s liability. —Where the holder of a negotiable instrument, without the consent of the indorser, destroys or impairs the indorser’s remedy against a prior party, the indorser is discharged from liability to the holder to the same extent as if the instrument had been paid at maturity.
A is the holder of a bill of exchange made payable to the order of B, which contains the following indorsements in blank —
First indorsement, “B”.
Second indorsement, “Peter Williams”.
Thrid indorsement “Wright & Co”.
Foruth indorsement, “John Rozario”.
This bill A puts in suit against John Rozario and strikes out, without John Rozario’s consent, the indorsements by Peter Williams and Wright & Co. A is not entitled to recover anything from John Rozario.
- Acceptor bound, although indorsement forged. —An acceptor of a bill of exchange already indorsed is not relieved from liability by reason that such indorsement is forged, if he knew or had reason to believe the indorsement to be forged when he accepted the bill.
- Acceptance of bill drawn in fictitious name. —An acceptor of a bill of exchange drawn in a fictitious name and payable to the drawer’s order is not, by reason that such name is fictitious, relieved from liability to any holder in due course claiming under an indorsement by the same hand as the drawer’s signature, and purporting to be made by the drawer.
- Negotiable instrument made, etc., without consideration. —A negotiable instrument made, drawn, accepted, indorsed, or transferred without consideration, or for a consideration which fails, creates no obligation of payment between the parties to the transaction. But if any such party has transferred the instrument with or without indorsement to a holder for consideration, such holder, and every subsequent holder deriving title from him, may recover the amount due on such instrument from the transferor for consideration or any prior party thereto.
Exception I. — No party for whose accommodation a negotiable instrument has been made, drawn, accepted or indorsed can, if he has paid the amount thereof, recover thereon such amount from any person who became a party to such instrument for his accommodation.
Exception II. — No party to the instrument who has induced any other party to make, draw, accept, indorse or transfer the same to him for a consideration which he has failed to pay or perform in full shall recover therein an amount exceeding the value of the consideration (if any) which he has actually paid or performed.
- Partial absence or failure of money-consideration. —When the consideration for which a person signed a promissory note, bill of exchange or cheque consisted of money, and was originally absence in apart relation with such signer is entitled to receive from him is proportionally reduced.
Explanation. — The drawer of a bill of exchange stands in immediate relation with the acceptor. The maker of a promissory note, bill of exchange or cheque stands in immediate relation with the payee, and the indorser with his indorsee. Other signers may by agreement stand in immediate relation with a holder.
A draws a bill on B for Rs. 500 payable to the order of A. B accepts the bill, but subsequently dishonours it by non-payment. A sues B on the bill. B proves that it was accepted for value as to Rs. 400, and as an accommodation to the plaintiff as to the residue. A can only recover Rs. 400.
- Partial failure of consideration not consisting of money. —Where a part of the consideration for which a person signed a promissory note, bill of exchange or cheque, though not consisting of money, is ascertainable in money without collateral enquriy, and there has been a failure of that party, the sum which a holder standing in immediate relation with such signer is entitled to receive from him is proportionally reduced.
45A. Holder’s right to duplicate of lost bill. — Where a bill of exchange has been lost before it is over-due, the person who was the holder of it may apply to the drawer to give him another bill of the same tenor, giving security to the drawer, if required, to indemnify him against all persons whatever in case the bill alleged to have been lost shall be found again.
If the drawer on request as aforesaid refuses to give such duplicate bill, he may be compelled to do so.
- Delivery. —The making, acceptance or indorsement of a promissory note, bill of exchange or cheque is completed by delivery, actual or constructive.
As between parties standing in immediate relation; delivery to be effectual must be made by the party making, accepting or indorsing the instrument, or by a person authorized by him in that behalf.
As between such parties and any holder of the instrument other than a holder in due course, it may be shown that the instrument was delivered conditionally or for a special purpose only, and not for the purpose of transferring absolutely the property therein.
As promissory note, bill of exchange or cheque payable to bearer is negotiable by the delivery thereof.
A promissory note, bill of exchange or cheque payable to order is negotiable by the holder by indorsement and delivery thereof.
- Negotiation by delivery. —Subject to the provisions of Section 58, a promissory note, bill of exchange or cheque payable to bearer is negotiable by delivery thereof.
Exception. — A promissory note, bill of exchange or cheque delivered on condition that it is not to take effect except in a certain event is not negotiable (except in the hands of a holder for value without notice of the condition) unless such event happens.
(a) A, the holder of a negotiable instrument payable to bearer, delivers it to B’s agent to keep for B. The instrument has been negotiated.
(b) A, the holder of a negotiable instrument payable to bearer, which is in the hands of A‘s banker, who is at the time the banker of B, directs the banker to transfer the instrument to B‘s credit in the banker’s account with B. The banker does so, and accordingly now possesses the instrument as B‘s agent. The instrument has been negotiated, and B has become the holder of it.
- Negotiation by indorsements. —Subject to the provisions of Section 58, a promissory note, bill of exchange or cheque payable to order, is negotiable by the holder by indorsement and delivery thereof.
- Conversion of indorsement in blank into indorsement in full. —The holder of a negotiable instrument indorsed in blanks may, without signing his own name, by writing above the indorser’s signature a direction to pay to any other person as indorsee, convert the indorsement in blank into an indorsement in full; and the holder does not thereby incur the responsibility an indorser.
- Effect of indorsement. —The indorsement of a negotiable instrument followed by delivery transfers to the indorsee the property therein with the right of further negotiation; but the indorsement may by express words, restrict or exclude such right, or may merely constitute the indorse an agent to indorse the instrument, or to receive its contents for the indorser, or for some other specified person.
B signs the following indorsements on different negotiable instruments payable to bearer —
(a) “Pay the contents to C only”.
(b) “Pay C for my use”.
(c) “Pay C or order for the account of B.”
(d) “The within must be credited to C”.
These indorsements exclude the right of further negotiation by C.
(e) “Pay C”.
(f) “C value in account with the Oriental Bank”.
(g) “Pay the contents to C, being part of the consideration in a certain deed of assignment excuted by C to indorser and others”.
These indorsements do not exclude the right of further negotiation by C.
- Who may negotiate. —Every sole maker, drawer, payee or indorsee, or all of several joint makers, drawers, payees or indorsees, of a negotiable instrument may, if the negotiability of such instrument has not been restricted or excluded as mentioned in Section 50, indorse and negotiate the same.
Explanation. — Nothing in this section enables a maker or drawer to indorse or negotiate an instrument, unless he is in lawful possession or is holder thereof, or enables a payee or indorsee to indorse or negotiate an instrument, unless he is holder thereof.
A bill is drawn payable to A or order. A indorses it to B, the indorsement not containing the words “or order” or any equivalent words. B may negotiate the instrument.
- Indorser who excludes his own liability or make it conditional. —The indorser of a negotiable instrument may, by express words in the indorsement, exclude his own liability thereon, or make such liability or the right of the indorsee ot receive the amount due thereon depend upon the happening of a specified event, although such event may never happen.
Where an indorser so excludes his liability and afterwards becomes the holder of the instrument all intermediate indorsers are liable to him.
(a) The indorser of a negotiable instrument signs his name, adding the words “Without recourse”. Upon this indorsement he incurs no liability.
(b) A is the payee and holder of a negotiable instrument. Excluding personal liability by an indorsement “without recourse”, he transfers the instrument to B, and B indorses it to C, who indorses it to A, A is not only reinstated in his former rights, but has the rights of an indorsee against B and C.
- Holder deriving title from holder in due course. —A holder of a negotiable instrument who derives title from a holder in due course has the rights thereon of that holder in due course.
- Instrument indorsed in blank. —Subject to the provisions hereinafter contained as to crossed cheques, a negotiable instrument indorsed in blank is payable to the bearer thereof even although originally payable to order.
- Conversion of indorsement in blank into indorsement in full. —If a negotiable instrument, after having been indorsed in blank, is indorsed in full, the amount of it cannot be claimed from the indorser in full, except by the person to whom it has been indorsed in full, or by one who derives title through such person.
- Indorsement for party of sum due. —No writing on a negotiable instrument is valid for the purpose of negotiation of such writing purports to transfer only a part of the amount appearing to be due on the instrument; but where such amount has been partly paid a note to that effect may be indorsed on the instrument, which may then be negotiated for the balance.
- Legal representative cannot by delivery only negotiate instrument indorsed by deceased. —The legal representative of a deceased person cannot negotiate by delivery only a promissory note, bill of exchange or cheque payable to order and indorsed by the deceased but not delivered.
- Instrument obtained by unlawful means or for unlawful consideration. —When a negotiable instrument has been lost, or has been obtained from any maker, acceptor or holder thereof by means of an offence or fraud, or for an unlawful consideration, no possessor or indorsee who claims through the person who found or so obtained the instrument is entitled to receive the amount due thereon from such maker, acceptor or holder, or from any party prior to such holder, unless such possessor or indorsee is, or some person through whom he claims was, a holder thereof in due course.
- Instrument acquired after dishonour or when overdue. —The holder of negotiable instrument, who has acquired it after dishonour, whether by non-acceptance or non-payment, with notice thereof, or after maturity, has only, as against the other parties, the rights thereon of his transferor:
Accommodation note or bill. — Provided that any person who, in good faith and for consideration, becomes the holder, after maturity, of a promissory note or bill of exchange made, drawn or accepted without consideration, for the purpose of enabling some party thereto to raise money thereon, may recover the amount of the note or bill from any prior party.
The acceptor of a bill of exchange, when he accepted it, deposited with the drawer certain goods as a collateral seeurity for the payment of the bill, with power to the drawer to sell goods and apply the proceeds in discharge of the bill if it were not paid at maturity. The bill not having been paid at maturity, the drawer sold the goods and retained the proceeds, but indorsed the bill to A. A‘s title is subject to the same objection as the drawer’s title.
- Instrument negotiable till payment or satisfacton. —A negotiable instrument may be negotiated (except by the maker, drawee or accptor after maturity) until payment or satisfaction thereof by the maker, drawee or acceptor at or after maturity, but not after such payment or satisfaction.
- Presentment for acceptance. —A bill fo exchange payable after sight must, if no time or place is specified therein for presentment, be presented to the drawee thereof for acceptance, if he can, after reasonable search, be found, by a person entitled to demand acceptance, within a reasonable time after it is drawn, and in business hours on a business day, in default of such presentment, on party thereto is liable thereon to the person making such default.
If the drawee cannot, after reasonable search, be found, the bill is dishonoured.
If the bill is directed to the drawee at a particular place, it must be presented at that place; and if at the due date for presentment he cannot, after reasonable search, be found thereon, the bill is dishonoured.
Where authorized by agreement or usage, a presentment through the post office by means of a registered letter is sufficient.
- Presentment of promissory note for sight. —A promissory note, payable at a certain period after sight must be presented to the maker thereof for sight (if he can after reasonable search be found) by a person entitled to demand payment, within a reasonable time after it is made and in business hours on a business day. In default of such presentment, no party thereto is liable thereon to the person making such default.
- Drawee’s time for deliberation. —The holder must, if so required by the drawee of a bill of exchange presented to him for acceptance, allow the drawee forty-eight hours (exclusive of public holidays) to consider whether he will accept it.
- Presentment for payment. —Promissory notes, bills of exchange and cheques must be presented for payment to the maker, acceptor or drawee thereof respectively, by or on behalf of the holder as hereinafter provided. In default of such presentment, the other parties thereto are not liable thereon to such holder.
Where authorized by agreement or usage, a presentment through the post office by means of a registered letter is sufficient.
Exception. — Where a promissory note is payable on demand and is not payable at a specified place, no presentment is necessary in order to charge the maker thereof.
- Honours for presentment. —Presentment for payment must be made during the usual hours of business and, if at a banker’s within banking hours.
- Presentment for payment of instru ment payable after date or sight. —A pro- missory note or bill of exchange, made payable at a specified period after date or sight thereof, must be presented for payment at maturity.
- Presentment for payment of promissory note payable by instalments . —A pro-missory note payable by instalments must be presented for payment on the third day after the date fixed for payment of each instalment; and non-payment on such presentment has the same effect as non-payment of a note at maturity.
- Presentment for payment of instrument payable at specified place and not elsewhere. —A promissory note, bill of exchange or cheque made, drawn or accepted payable at a specified place and not elsewhere must, in order to charge any party thereto, be presented for payment at that place.
- Instrument payable at specified place. —A promissory note or bill of exchange made, drawn or accepted payable at a specified place must, in order to charge the maker or drawer thereof, be presented for payment at the place.
- Presentment where no exclusive place specified. —A promissory note or bill of exchange, not made payable as mentioned in Sections 68 and 69, must be presented for payment at the place of business (if any), or at the usual residence of the maker, drawee or acceptor thereof, as the case may be.
- Presentment when maker, etc., has no known place of business or residence. —If the maker, drawee or acceptor of a negotiable instrument has no known place of business or fixed residence, and no place is specified in the instrument for presentment for acceptance or payment such presentment may be made to him in person wherever he can be found.
- Presentment of cheque to charge drawer. —Subject to the provisions of Section 84 a cheque must, in order to charge the drawer, be presented at the bank upon which it is drawn before the relation between the drawer and his banker has been altered to the prejudice of the drawer.
- Presentment of cheque to charge any other person. —A cheque must, in order to charge any person except the drawer, be presented within a reasonable time after delivery thereof by such person.
- Presentment of instrument payable on demand. —Subject to the provisions of Section 31, a negotiable instrument payable on demand must be presented for payment within a reasonable time after it is received by the holder.
- Presentment by or to agent, representative of deceased, or assignee of insolvent. —Presentment for acceptance or payment may be made to the duly authorized agent of the drawee, maker or acceptor, as the case may be, or, where the drawee, maker or acceptor has died, to his legal representative, or, where he has been declared an insolvent, to his assignee.
75A. Excuse for delay in presentment for acceptance or payment. — Delay in presentment for acceptance or payment is excused if the delay is caused by circumstance beyond the control of the holder, and not imputable to his default, miscondut or negligence, When the cause of delay ceases to operate, presentment must be made within a reasonable time.
- When presentment unnecessary. —No presentment for payment is necessary, and the instrument is dishonoured at the due date for presentment, in any of the following cases: —
(a) if the maker, drawee or acceptor intentionally prevents the presentment of the instrument, or If the instrument being payable at his place of business, he closes such place on a business day during the usual business hours, or If the instrument being payable at some other specified place, neither he nor any person authorized to pay it attends at such place druing the usual business hours, or If the instrument not being payable at any specified place, he cannot after due search be found;
(b) as against any party sought to be charged therewith, if he has engaged to pay notwithstanding non-presentment;
(c) as against any party if, after maturity, with knowledge that the instrument has not been presented — he makes a part payment on account of the amount due on the instrument, or promises to pay the amount due therein whole or in part, or otherwise waives his right to take advantage of any default in presentment for payment;
(d) as against the drawer, if the drawer could not suffer damage from the want of such presentment.
- Liability of banker for negligently dealing with bill presented for payment. —When a bill of exchange, accepted payable at a specified bank, has been duly presented there for payment and dishonoured, if the banker so negligently or improperly keeps, deals with or delivers back such bill as to cause loss to the holder, he must compensate the holder for such loss.
OF PAYMENT AND INTEREST
- To whom payment should be made. —Subject to the provisions of Section 82, clause (c), payment of the amount due on a promissory note, bill of exchange or cheque must, in order to discharge the maker or acceptor, be made to the holder of the instrument.
- Interest when rate specified. —When interest at a specified rate is expressly made payable on a promissory note or bill of exchange, interest shall be calculated at the rate specified, on the amount of the principal money due thereon, from the date of the instrument, until tender or realization of such amount, or until such date after the institution of a suit to recover such amount as the Court directs.
- Interest when no rate specified. —When no rate of interest is specified in the instrument, interest on the amount due thereon shall, notwithstanding any agreement relating to interest between any parties to the instrument, be calculated at the rate of [eighteen per centum] per annum, from the date at which the same ought to have been paid by the party charged, until tender or realization of the amount due thereon, or until such date after the institution of a suit to recover such amount as the Court directs.
Explanation. — When the party charged is the indorser of an instrument dishonoured by non-payment, he is liable to pay interest only from the time that he receives notice of the dishonour.
- Delivery of instrument on payment or indemnity in case of loss. —Any person liable to pay, and called upon by the holder thereof to pay, the amount due on a promissory note, but of exchange or cheque is before payment entitled to have it shown, and is on payment entitled to have it delivered up, to him, or, if the instrument is lost or cannot be produced, to be indemnified agaisnt any further claim thereon against him.
OF DISCHARGE FROM LIABILITY ON NOTES, BILLS AND CHEQUES
- Discharge from liability. —The maker, acceptor or indorser respectively of a negotiable instrument is discharged from liability thereon —
(a) By cancellation — to a holder thereof who cancels such acceptor’s or indorser’s name with intent to discharge him, and to all parties claiming under such holder;
(b) By release — to a holder thereof who otherwise discharged such maker, acceptor or indorser, and to all parties deriving title under such holder after notice of such discharge;
(c) By payment — to all parties thereto, if the instrument is payable to bearer or has been indorsed in blank, and such maker, acceptor or indorser makes payment in due course of the amount due thereon.
- Discharge by allowing drawee more than forty-eight hours to accept. —If the holder of a bill of exchange allows the drawee more than forty eight hours, exclusive of public holidays, to consider whether he will accept the same, all previous parties not consenting to such allowance are thereby discharged from liability to such holder.
- When cheque not duly presented and drawer damaged thereby. —(1) Where a cheque is not presented for payment within a reasonable time of its issue, and the drawer or person on whose account it is drawn had the right, at the time when presentment ought to have been made, as between himself and the banker, to have the cheque paid and suffers actual damage through the dealy, he is discharged to the extent of such damage, that is to say, to the extent to which such drawer or person is a creditor of the banker to a large amount than he would have been if such cheque had been paid.
(2) In determining what is a reasonable time, regard shall be had to the nature of the instrument, the usage of trade and of bankers, and the facts of the particular case.
(3) The holder of the cheque as to which such drawer or person is so discharged shall be a creditor, in lieu of such drawer or person, of such banker to the extent of such discharge and entitled to recover the amount from him.
(a) A draws a cheque for Rs. 1,000, and, when the cheque ought to be presented, has funds at the bank to meet it. The bank fails before the cheque is presented. The drawer is discharged, but the holder can prove against the bank for the amount of the cheque.
(b) A draws a cheque at Umballa on a bank in Calcutta. The bank fails before the cheque could be presneted in ordinary course. A is not discharged, for he has not suffered actual damage through any delay in presenting the cheque.
- Cheque payable to order. —(1) Where a cheque payable to order purports to be indorsed by or on behalf of the payee, the drawee is discharged by payment in due course.
(2) Where a cheque is originally expressed to be payable to bearer, the drawee is discharged by payment in due course to the bearer thereof, notwithstanding any indorsement whether in full or in blank appearing thereon, and notwithstanding that any such indorsement purports to restrict or exclude further negotiation.
85A. Drafts drawn by one branch of a bank on another payable to order. — Where any draft, that is an order to pay money, drawn by one office of a bank upon another office of the same bank for a sum of money payable to order on demand, purports to be indorsed by or on behalf of the payee, the bank is discharged by payment in due course.
- Parties not consenting discharge d by qualified or limited acceptance. —If the holder of a bill of exchange acquiesces in a qualified acceptance, or one limited to part of the sum mentioned in the bill, or which substitutes a different place or time for payment, or which, where the drawees are not partners, is not signed by all the drawees, all previous parties whose consent is not obtained to such acceptance are discharged as against the holder and those claiming under him, unless on notice given by the holder they assent to such acceptance.
Explanation. — An acceptance is qualified —
(a) where it is conditional, declaring the payment to be dependent or the happening of an event therein stated;
(b) where it undertakes the payment of part only of the sum ordered to be paid;
(c) where, no place of payment being specified on the order, it undertakes the payment at a specified place, and not otherwise or elsewhere; or where, a place of payment being specified in the order, it undertakes the payment at some other place and not otherwise or elsewhere;
(d) where it undertakes the payment at a time other than that at which under the order or would be legally due.
- Effect of material alteration. —Any material alteration of a negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties;
Alteration by indorsee. — And any such alteration, if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration thereof.
The provisions of this section are subject to those of Sections 20, 49, 86, and 125.
Any material alternation of a negotiable instrument renders the same void against any one who is party thereto at the time of making the alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties. Adding stamps and signatures and corrections in signature and writing are also material alterations. [Jawahar Trading Corporation v. K.K. Ramdas & Ors, 1990(1) Banking Cases 100 (Kerala).]
- Acceptor or indorser bound notwithstanding previous alteration. —An acceptor or indorser of a negotiable instrument is bound by the acceptance or indorsement notwithstanding any previous alteration of the instrument.
- Payment of instrument on which alteration is not apparent. —Where a pro-missory note, bill of exchange or cheque has been materially altered but does not appear to have been so altered, or where a cheque is presented for payment which does not at the time of presentation appear to be crossed or to have had a crossing which has been obliterated, payment thereof by a person or banker liable to pay and paying the same according to the apparent tenor thereof at the time of payment and otherwise in due course, shall discharge such person or banker from all liability thereon; and such payment shall not be questioned by reason of the instrument having altered, or the cheque crossed.
- Extinguishment of rights of action on bill in accceptor’s hands. —If a bill of exchange which has been negotiated is, at or after maturity, held by the acceptor in his own right, all rights of action thereon are extinguished.
OF NOTICE OF DISHONOUR
- Dishonour by non-acceptance. —A bill of exchange is said to be dishonoured by non-accceptance when the drawee, or one of several drawees not being partners, makes default in acceptance upon being duly required to accept the bill, or where presentment is excused and the bill is not accepted.
Where the drawee is in competent to contract, or the acceptance is qualified the bill may be treated as dishonoured.
- Dishonour by non-payment. —A promissory note, bill of exchange or cheque is said to be dishonoured by non-payment when the maker of the note, acceptor of the bill or drawee of the cheque makes default in payment upon being duly required to pay the same.
- By and to whom notice should be given. —When a promissory note, bill of exchange or cheque is dishonoured by non-acceptance of non-payment, the holder thereof, or some party thereto who remains liable thereon, must give notice that the instrument has been so dishonoured to all other partied whom the holder seeks to make severally liable thereon, and to some one of several parties whom he seeks to make jointly liable thereon.
Nothing in this section render it necessary to give notice to the maker of the dishonoured promissory note, or the drawee or acceptor of the dishonoured bill of exchange or cheque.
- Mode in which notice may be given. —Notice of dishonour may be given to duly authorized agent of the person to whom it is required to be given, or, where he has died, to his legal representative, or, where he has been declared an insolvent, to his asignee; may be oral or written; may, if written, be sent by post; and may be in any from; but it must inform the party to whom it is given, either in express terms or by reasobable intendment that the instrument has been dishonoured, and in what way, and that he will be held liable thereon; and it must be given within a reasonable time after dishonour, at the place of business or (in case such party has no place of business) at the residence of the party for whom it is intended.
If the notice is duly directed and sent by post and miscarries, such miscarriage does not render the notice invalid.
- Party receiving must transmit notice of dishonour. —Any party receiving notice of dishonour must, in order to render any prior party liable to himself, give notice of dishonour to such party within a reasonable time, unless such party otherwise receives due notice as provided by Section 93.
- Agent for presentment. —When the instrument is deposited with an agent for presentment, the agent is entitled to the same time to give notice to his principal as if he were the holder giving notice of dishonour, and the principal is entitled to a further like period to give notice of dishonour.
- When party to whom notice given is dead. —When the party to whom notice of dishonour is despatched is dead, but the party despatching the notice is ignorant of his death, the notice is sufficient.
- When notice of dishonour is unnecessary. —No notice of dishonour is necessary —
(a) when it is dispensed with by the party entitled thereto;
(b) in order to charge the drawer, when he has countermanded payment;
(c) when the party charged could not suffer damage for want of notice;
(d) when the party entitled to notice cannot after due search be found; or the party bound to give notice is, for any other reason, unable without any fault of his own to give it;
(e) to charge the drawers, when the acceptor is also a drawer,
(f) in the case of a promissory note which is not negotiable,
(g) when the party entitled to notice, knowing the facts, promises unconditionally to pay the amount due on the instrument.
OF NOTING AND PROTEST
- Noting. —When a promissory note or bill of exchange has been dishonoured by non-acceptance or non-payment, the holder may cause such dishonour to be noted by a notary public upon the instrument, or upon a paper attached thereto, or partly upon each.
Such note must be made within a reasonable time after dishonour, and must specify the date of dishonour, the reason, if any, assigned for such dishonour, or, if the instrument has not been expressly dishonoured, the reason why the holder treats it as dishonoured, and the notary’s charges.
- Protest. —When a promissory note or bill of exchange has been dishonoured by non-acceptance or non-payment, the holder may, within a reasonable time, cause such dishonour to be noted and certified by a notary public. Such certificate is called a protest.
Protest for better security. — When the acceptor of a bill of exchange has become insolvent, or his credit has been publicly impeached, before the maturity of the bill, the holder may, within a reasonable time, cause a notary public to demand better security of the acceptor, and on its being refused may, with a reasonable time, cause such facts to be noted and certified as aforesaid. Such certificate is called a protest for better security.
- Contents of protest. —A protest under Section 100 must contain —
(a) either the instrument itself, or a literal transcript of the instrument and of everything written or printed thereupon;
(b) the name of the person for whom and against whom the instrument has been protested;
(c) a statement that payment or acceptance, or better security, as the case may be, has been demanded of such person by the notary public; the terms of his answer, if any, or a statement that he have no answer, or that he could not be found;
(d) when the note or bill has been dishonoured, the place and time of dishonour, and, when better security has been refused, the place and time of refusal;
(e) the subscription of the notary public making the protest;
(f) in the event of an acceptance for honour or of a payment for honour, the name of the person by whom, of the person for whom, and the manner in which, such acceptance or payment was offered and effected.
A notary public may make the demand mentioned in clause (c) of this section either in person or by his clerk or, were authorized by agreement or usage, by registered letter.
- Notice of protest. —When a promissory note or bill of exchange is required by law to be protested; notice of such protest must be given instead of notice of dishonour, in the same manner and subject to the same conditions; but the notice may be given by the notary public who makes the protest.
- Protest for non-payment after dishonour by non-acceptance. —All bills of exchange drawn payable at some other place than the place mentioned as the residence of the drawee, and which are dishonoured by non-accceptance, may, without further presentment to the drawee, be protested for non-payment, in the place specified for payment, unless paid before or at maturity.
- Protest of foreign bills. —Foreign bills of exchange must be protested for dishonour when sufh protest is required by the law of the place where they are drawn.
104A. When noting equivalent to protest. — For the purposes of this Act, where a bill of note is required to be protested within a specified time or before some further proceeding is taken is it sufficient that the bill has been noted for protest before the expiration of the specified time or the taking of the proceeding; and the formal protest may be extended at any time thereafter as of the date of the noting.
OF REASONABLE TIME
- Reasobable time. —In determining what is a reasonable time for presentment for acceptance or payment, for giving notice of dishonour and for noting, regard shall be had to the nature of the instrument and the usual course of dealing with respect to similar instruments; and, in calculating such time, public holidays shall be excluded.
- Reasonable time of giving notice of dishonour. —If the holder and the party to whom notice of dishonour is given carry on business or live (as the case may be) in different places, such notice is given within a reasonable time if it is despatched by the next post or on the day next after the day of dishonour.
If the said parties carry on business or live in the same place, such notice is given within a reasonable time if it is despatched in time to reach its destination on the day next after the day of dishonour.
- Reasonable time for transmitting such notice. —A party receiving notice of dishonour, who seeks to enforce his right against a prior party, transmits the notice within a reasonable time if he transmits it within the same time after its receipt as he would have had to give notice if he had been the holder.
OF ACCEPTANCE AND PAYMENT FOR HONOUR AND REFERENCE IN CASE OF NEED
- Acceptance for honour. —When a bill of exchange has been noted or protested for non-acceptance or for better security, any person not being a party already liable thereon may, with the consent of the holder, by writing on the bill, accept the same for the honour of any party thereto.
- How acceptance for honour must be made. —A person desiring to accept for honour must, by writing on the bill under his hand, declare that he accepts under protest the protested bill for the honour of the drawer or of a particular indorser whom he names, or gernerally for honour.
- Acceptance not specifying for whose honour it is made. —Where the acceptance does not express for whose honour it is made it shall be deemed to be made for the honour of the drawer.
- Liability of acceptor for honour. —An acceptor for honour binds himself to all parties subsequent to the party for whose honour he accepts to pay the amount of the bill if the drawee do not; and such party and all prior parties are liable in their respective capacities to compensate the acceptor for honour for all loss or damage sustained by him in consequence of such acceptance.
But an acceptor for honour is not liable to the holder of the bill unless it is presented, or (in case the address given by such acceptor on the bill is a place other than the place where the bill is made payable) forwarded for presentment, not later than the day next after the day of its maturity.
- When acceptor for honour may be charged. —An acceptor for honour cannot be charged unless the bill has at its maturity been presented to the drawee for payment, and has been dishonoured by him, and noted or protested for such dishonour.
- Payment for honour. —When a bill of exchange has been noted or protested for non-payment, any person may pay the same for the honour of any party liable to pay the same: provided that the person so paying or his agent in that behalf has previously declared before a notary public the party for whose honour he pays, and that such declaration has been recorded by such notary public.
- Right of payer for honour. —Any person so paying is entitled to all the rights in respect of the bill, of the holder at the time of such payment, and may recover from the party for whose honour he pays all sums so paid, with interest thereon and with all expenses properly incurred in making such payment.
- Drawee in case of need. —Where a drawee in case of need is named in a bill of exchange, or in any indorsement thereon, the bill is not dishonoured until it has been dishonoured by such drawee.
- Acceptance and payment without protest. —A drawee in case of need may accept and pay the bill of exchange without previous protest.
- Rules as to compensation. —The compensation payable in case of dishonour of a promissory note, bill of exchange or cheque, by any party liable to the holder or any indorsee, shall be determined by the following rules: —
(a) the holder is entitled to the amount due upon the instrument together with the expenses properly incurred in presenting, noting and protesting it;
(b) when the peron charged resides at a place different from that at which the instrument was payable, the holder is entitled to receive such sum at the current rate of exchange between the two places;
(c) an indorser who, being liable, has paid the amount due on the same is entitled to the amount so paid with interest at [eighteen per centum] per annum from the date of payment until tender or realisation thereof, together with all expenses caused by the dishonour and payment;
(d) when the person charged and such indorser reside at different places, the indorser is entitled to receive such sum at the current rate of exchange between the two places;
(e) the party entitled to compensation may draw a bill upon the party liable to compensate him, payable at sight or on demand, for the amount due to him, together with all expenses properly incurred by him, Such bill must be accompanied by the instrument dishonoured and the protest thereof (if any). If such bill is dishonoured, the party dishonouring the same is liable to make compensation thereof in the same manner as in the case of the original bill.
SPECIAL RULES OF EVIDENCE
- Presumptions as to negotiable instruments of consideration. —Until the contray is proved, the following presumptions shall be made: —
(a) of consideration — that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
(b) as to date — that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance — that every accepted bill of exchange was accepted within a reasobable time after its date and before its maturity;
(d) as to time of transfer — that every transfer of a negotiable instrument was made before its maturity;
(e) as to order of indorsements — that the indorsements appearing uon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stamps — that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course — that the holder of a negotiable instrument is a holder in due course; provided that, where the instrument has been contained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
- Presumption on proof of protest. —In a suit upon an instrument which has been dishonoured, the Court shall, on proof of the protest, presume the fact of dishonour, unless and until such fact is disproved.
- Estoppel against denying original validity of instrument. —No maker of a promissory note, and no drawer of a bill of exchange or cheque, and no aceptor of a bill of exchange for the honour of the drawer shall, on proof of the protest, presume the fact of dishonour, unless and until validity of the instrument as originally made or drawn.
- Estoppel against denying capacity of payee of indorse. —No maker of a promissory note and no acceptor of a bill of exchange payable to order shall, in a suit thereon by a holder in due course, be permitted to deny the payee’s capacity, at the rate of the note or bill, to indorse the same.
- Estoppel against denying signature or capacity of prior party. —No indorser of a negotiable instrument shall, in a suit thereon by a subsequent holder, be permitted to deny the singnature or capacity to contract of any prior party to the instrument.
OF CROSSED CHEQUES
- Cheque crossed generally. —Where a cheque bears across its face an addition of the words “and company” or any abbreviation thereof, between two parallel transverse lines, or of two parallel transverse lines simply, either with or without the words “not negotiable”, that addition shall be deemed a crossing, and the cheque shall be deemed to be crossed generally.
- Cheque crossed specially. —Where a cheque bears across its face an addition of the name of a banker, either with or without the words “not negotiable”, that addition shall be deemed a crossing, and the cheque shall be deemed to be crossed specially, and to be crossed to that banker.
- Crossing after issue. —Where a cheque is uncrossed, the holder may cross it generally or specially.
Where a cheque is crossed generally, the holder may cross it specially.
Where a cheque is crossed generally or specially, the holder may add the words “not negotiable”.
Where a cheque is crossed specially, the banker to whom it is crossed may again cross it specially to another banker, his agent, for collection.
- Payment of cheque crossed generally. —Where a cheque is crossed generally, the banker on whom it is drawn shall not pay it otherwise than to banker.
Payment of cheque crossed specially. Where a cheque is crossed specially, the banker on whom it is drawn shall not pay it otherwise than to the banker to whom it is crossed, or his agent for collection.
- Payment of cheque crossed specially more than once. —Where a cheque is crossed specially to more than one banker, except when crossed to an agent for the purpose of collection, the banker on whom it is drawn shall refuse payment thereof.
- Payment in due course of crossed cheque. —Where the banker on whom a crossed cheque is drawn has paid the same in due course, the banker paying the cheque, and (in case such cheque has come to the hands of the payee) the drawer thereof, shall respectively be entitled to the same rights, and be placed in the same position in all respects, as they would respectively be entitled to and placed in if the amount of the cheque had been paid to and received by the true owner thereof.
- Payment of crossed cheque out of due course. —Any banker paying a cheque crossed generally otherwise than to a banker, or a cheque crossed specially otherwise than to the banker ot whom the same is crossed, or his agent for collection, being a banker, shall be liable to the true owner of the cheque for any loss he may sustain owing to the cheque having been so paid.
- Cheque bearing “not negotiable.” —A person taking a cheque crossed generally or specially, bearing in either case the words “not negotiable”. shall not have and shall not be capable of giving, a better title to the cheque than that which the person from whom he took it had.
- Non-liability of banker receiving payment of cheque. —A banker who has in good faith and without negligence received payment for a customer of a cheque crossed gernerally or specially to himself shall not, in case the title to the cheque proves defective, incur any liability to the true owner of the cheque by reason only of having received such payment.
Explanation. — A banker receives payment of a crossed cheque for a customer within the meaning of this section notwithstanding that he credits his customer’s account with the amount of the cheque before receiving payment thereof.
131A. Application of Chapter to drafts. — The provision of this Chapter shall apply to any drafts, as defined in section 85A, as if the draft were a cheque.
OF BILLS IN SETS
- Set of bills. —Bills of exchange may be drawn in parts, each part being numbered and containing a provision that it shall continue payable only so long as the others remain unpaid. All the parts together make a set; but the whole set constitutes only one bill, and is extinguished when one of the parts if a separate bill, would be extinguished.
Exception. — When a person accepts or indorses different parts of the bill in favours of different persons, he and the subsequent indorsers of each part are liable on such part as if it were a separate bill.
- Holder of first acquired part entitled to all. —As between holders in due course of different parts of the same set, he who first acquired title to his part is entitled to the other parts and the money represented by the bill.
OF INTERNATIONAL LAW
- Law governing liability of maker, acceptor or indorser of foreign instrument. —In the absence of a contract to the contrary, the liability of the maker of drawer of a foreign promissory note, bill of exchange or cheque is regulated in all essential matters by the law of the place where he made the instrument, and the respective liabilities of the acceptor and indorser by the law of the place where the instrument is made payable.
A bill of exchange was drawn by A California where the rate of interest is 25 per cent, and accepted by B, payable in Washington where the rate of interest is 6 per cent. The bill is indorsed in India, and is dishonoured. An action on the bill is brought against B in India. He is liable to pay interest at the rate of 6 per cent, only; but if A is charged as drawer, A is liable to pay interest at the rate of 25 per cent.
- Law of place of payment governs dishonour. —Where a promissory note, bill of exchange or cheque is made payable in a different place from that in which it is made or indorsed, the law of the place where it is made payable determines what constitutes dishonour and what notice of dishonour is sufficient.
A bill of exchange drawn and indorsed in India, but accepted payable in France, is dishonoured, The indorsee couses it to be protested for such dishonour, and gives notice thereof in accordance with the law of France though not in acordance with the rules herein contained in respect of bills which are not foreign. The notice is sufficient.
- Instrument made, etc., out of India, but in accordance with the law of India. —If a negotiable instrument is made, drawn accepted or indorsed outside India, but in accordance with the law of India, the circumstance that any agreement evidenced by such instrument is invalid according to the law of the country wherein it was entered into does not invalidate any subsequent acceptance or indorsement made thereon within India.
- Presumption as to foreign law. —The law of any foreign country regarding promissory notes, bills of exchange and cheques shall be presumend to be the same as that of India, unless and until the contrary is proved.
 [CHAPTER XVII
OF PENALTIES IN CASE OF DISHONOUR OF CERTAIN CHEQUES FOR INSUFFICIENCY OF FUNDS IN THE ACCOUNTS
- Dishonour of cheque for insufficiency, etc., of funds in the account. —Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of maoney to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless —
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation. — For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.
“Post dated cheque” has to be considered to have been drawn on the date it bears. (Manoj K. Seth v. Fernandez, 1991 Cr. L.J. 3253.)
Limitation starts from 16th day onwards. (M/s. Mahalaxmi Enterprises v. Shri Vishnu Trading Co & Anr., AIR 1991 A.P. 74 : 1991(1) Rec C.R. 702.)
Stop payment, Refer to drawer, Account closed implies insufficiency of funds — Penal provisions are attracted. [Rakesh Nemkumar Porwal v. Narayan Dhondu, 1993 ISJ (Banking) 251).]
Cheque can be presented more than once within the period of its validity — [Richard Samson Sherrat v. State of A.P., 1992 ISJ (Banking) 1502; 1992(2) Rec C.R. 611; 1993 JCC 1 (Delhi): 1993(2) Crimes 1167(Delhi).]
- Presumption in favour of holder. —It shall be presumed, unles the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, or any debt or other liability.
- Defence which may not be allowed in any prosecution under Section 138. —It shall not be a defence in a prosecution for an offence under Section 138 that the drawer had no reason to believe when he issued the cheque that the cheque may be dishonoured on presentment for the reasons stated in that section.
- Offences by companies. —(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation. — For the purposes of this section —
(a) “company” means any body corporate and includes a firm or other association of individuals; and
(b) “director” in relation to a firm, means a partner in the firm.
- Cognizance of offences. —Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) —
(a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the cause-of-action arises under clause (c) of the proviso to Section 138;
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138.]
SCHEDULE. —Enactment repealed. — [Rep. by the Amending Act, 1891 (12 of 1891).
 The words “except the State of Jammu and Kashmir” omitted by Act 62 of 1956.
 See now the Reserve Bank of India Act, 1934.
 Subs. by Act No. 66 of 1988 for “six per centam” (w.e.f. 30-12-1988).
 Subs. by Act No. 66 of 1988 for “six per centum” (w.e.f. 30-12-1988).
 Inserted by Act No. 66 of 1988 (w.e.f. 1-4-1989).