My husband and my in-laws want to throw me out from the matrimonial home. I have some confrontations with my husband and in-laws because they committed extreme cruelty against me. They are very greedy and don’t like any resistance from me.
My father tried his best to convince them but didn’t yield any satisfactory result. I have been living at my parental home and no longer wish to live there. I want to live in the matrimonial home along with my husband because I don’t want to lose his faith. Hence, I have filed a case against them under domestic violence and a maintenance case under section 125 crpc.
The Domestic Violence Act provides a legal remedy for women who have been subjected to domestic violence. A residence order is one of the remedies available under this Act, which allows the victim to continue residing in a shared household and excludes the respondent (the person accused of domestic violence) from the household. If the victim has been expelled from the shared household, she can claim a residence order under Section 19 of the Act, which grants the Magistrate wide powers to secure her residence in the shared household.
The residence order is a legal remedy in the form of an order issued by a court that is meant to protect the victim from further domestic violence. It can be issued for a specified period of time or until further order of the court. The victim of domestic violence can avail others remedies along with the residence order such as protection of property, custody of children, and maintenance. The respondent (accused of domestic violence) still has the right to access the shared household, but they must do so in accordance with the conditions set out in the residence order.
An aggrieved person can claim residence order under domestic violence act
You are entitled to get a residence order under section 19 of the Protection of Women from Domestic Violence Act (DV Act). Section 17 of the DV Act entitles an aggrieved person to reside in a shared household. No person can disturb her possession or commit violence intending to dispossessing her from home.
A wife however, doesn’t hold title or interest in the matrimonial home, therefore, her husband used to throw her out from his home upon creeping disputes. In this situation, section 17 protects the interest of women by providing them with the right to reside in a shared household despite having no right therein. Right to shelter is also a fundamental right under Article 21 of the constitution and section 17 enforces this right.
Claim residence order as a relief in the application
You should claim residence order under the domestic violence act if you have not claimed yet. In case you did not seek relief of residence order you can amend the complaint filed under Section 12 of the DV Act. You should file an amendment application and seek residence order as an additional relief under DV Act. The court has the power to allow such an amendment before passing of order or judgment.
Right to reside in the shared household
A woman has the right to reside in a shared household due to her domestic relationship. Her husband or in-laws cannot take away her right merely on creeping disputes. According to Section 17, every woman in a domestic relationship has the right to reside in the shared household. She has the right even she has no title, right or beneficial interest in the shared household.
The right to residence is an independent right of a woman who is living in a domestic relationship. It does not depend upon the existence of proprietary rights of women. Section 17 does not confuse with the property right of women and provides them with accommodation despite that women have no ownership in the house.
You are entitled to reside therein, therefore, you can seek residence order under the domestic violence Act. The court may pass specific order under section 19 such as:
Direct the respondent to remove themselves from the shared household.
Restraining them from entering any portion of the shared household in which you reside.
Restraining them from selling, alienating or disposing of the shared household.
The right to residence is not absolute. Therefore, it has some specific limitations. To get the residence order, the wife has to prove that she has been living or had lived together in the shared household under domestic relationship.
Section 2(s) defines a shared household. In S.R. Batra v. Taruna Batra, (2007) 3 SCC 169; the Supreme Court has held that
As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a shared household would only mean the house belonging to or taken on rent by the husband or the house which belongs to the joint family of which the husband is a member.
Hence, you are entitled to seek a residence order under section 19 of the DV Act. The court may that order if it satisfies that
Respondents have committed the act of domestic violence.
You have lived with them in a domestic relationship.
The house comes under the purview of a shared household.
It is in the interest of justice to pass such an order. then the court may pass a residence order.
The court may restrict the entry of respondents if it thinks that they may commit domestic violence.
Query 1: Can I claim a residence order against the father-in-law who is the owner of the house?
My husband is living in Gurugram and I am living with my in-laws in Hisar. They are compelling me to live with my husband so that they can sell this house. My father in law is the owner of the house so could I claim residence order. [Query from Haryana]
Answer: You cannot claim the right to a residence against your father in law because this house does not come under the purview of “Shared Household”. Section 2(s) of the DV Act defines a shared household. An aggrieved person can claim any relief if she lives or at any stage has lived in the house together with the respondent in a domestic relationship. According to that section, the shared household includes:
A house owned or tenanted by either an aggrieved person or respondent or both of them.
Wherein the aggrieved person and respondent jointly or singly have any right, title, interest or equity.
A house of Joint family of which the respondent is a member.
You can seek relief under the DV Act only against the respondent with whom you are living in a domestic relationship. Section 2(f) of the DV Act defines the domestic relationship. Domestic relationship means the relation of two persons by consanguinity, marriage, or through a relationship in the nature of marriage or family members living together as a joint family.
According to section 2(f), you are not living in a domestic relationship with your in-laws. This house is the self-acquired property of your father in law. Your husband is living in Gurugram and this house is not a joint family property. You cannot prove that this house is a shared household. Therefore, you cannot seek a residence order against this house which is owned by your father in law.
Query 2: Could the first wife claim a residence order against the respondent who is not an owner of the house?
I am the second wife of my husband and the owner of the house. His first wife is also residing with us in the same house. The first wife has filed a complaint under section 12 DV Act for a residence order. If the court may pass such an order then she will not leave my house. Please guide me.
Answer: The first wife cannot claim the right to residence in this house. You are the owner of this house, therefore, this house will be regarded as a shared household towards you and your husband. The first wife is not an interested party so far as relates to this house. This application is infructuous and the court should not entertain it.
The first wife cannot claim that it is a shared household because it is not owned or tenanted by her husband. Even her husband has no right or interest in this house hence, she cannot invoke section 17/19 of the DV Act. If you are not a respondent in her application then you should approach the court for making you a party. You should inform the court and produce evidence that you are the owner of this house. When the court satisfies that it is not a shared household under the DV Act then it will dismiss her application.
Query 3: Whether I am entitled to reside with my husband who is living with his girlfriend?
My husband left me ten years ago due to some differences. I have a twelve years old child who is living with me. We never applied for divorce and living separately for ten years. In the meantime, he has started to live with a woman who is working in his office. Now I want to live with him so could I get any relief under the DV Act.
Answer: You are a legally wedded wife and have lived with him in the shared household. Therefore, you are entitled to get the residence order under section 19 of the DV Act. Your husband is living with his girlfriend. This fact does not affect your right to residence provided under Section 17 of the DV Act.
You should move an application under section12 of the DV Act and claim residence order along with other relief. Two important facts are in your favour. Firstly, you have lived with him in a domestic relationship under the shared household. Secondly, the said domestic relationship still exists because your marriage has not been dissolved.
If he is not ready to live with you in the same house, wherein he is living with his girlfriend then he has to provide you with alternate accommodation. Alternate accommodation is an alternate relief or substitute of the right to the residence. He will either provide a house or rented accommodation of similar standard.
My file has filed a false case under domestic violence act. Does the court examine the truthfulness of the case before passing any order against the accused?
False allegations made by the wife against her husband destroy the sanctity of marriage. Marriage speaks of an absolute faithfulness, mutual encouragement, admiration, respect and assistance of the couple to each other with all love and grace to make out a peaceful institution.
As per the section 3 of the 2005 Act, it appears that if the conduct of the respondent harms or injures or endangers the health, safety, life, limb or well being, whether mental or physical, of the aggrieved person or tends to do so, it would amount to “domestic violence” which includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse.
Thus for the commencement of the offence under the domestic violence act, it is necessary to prove that wife is a victim of domestic violence and act of domestic violence has been committed in the shared household. If the husband harasses, harms injures or endangers his wife (aggrieved person) with a view to coerce her or any other person related to her to meet any unlawful demand for dowry or other property or valuable security, it would also amount to domestic violence.
These facts are missing in your case therefore no offence punishable under the domestic violence has made out. The magistrate is bound to consider all the evidence brought on record to satisfy himself whether the offence of domestic violence has been committed or not. Averments made by the aggrieved person in her complaint is the paramount material for consideration.
If averment of aggrieved person is vague, bald or suspicious cognizance should not be taken by the Magistrate. In devoid of credible evidence or medical report it cannot be said that the husband used to commit physical abuse, a single act of verbal abuse cannot form the basis of physical abuse.
Physical abuse, sexual abuse, verbal and emotional abuse as well as economic abuse has been defined under the Explanation I to section 3 of the D.V Act. As per Explanation II of section 3, the overall facts and circumstances of the case shall be taken into consideration to see whether the act, omission, commission or conduct of the respondent constitutes domestic violence or not.
It is settled law that cognizance shall not be taken on the insufficient material brought on the record by the complainant. You should file a revision petition before the court of sessions and challenge the cognizance taken by the court and process issued by the same.
I’m a victim of domestic violence. My husband and in-laws have been committing cruelty even on petty issues. I left my matrimonial home and living with my parents. Can I get monetary relief under the domestic violence act?
Asked from: Karnataka
A wife is entitled to maintenance upon proof that the husband has neglected or refused to maintain her and further that she is unable to maintain herself. Wife is entitled to an order for maintenance against her husband.
Maintenance orders can be passed by the Magistrate under section 125 of the code of criminal procedure. If the wife is a victim of domestic violence she can seek maintenance order under section 20 of the protection of a woman from a domestic violence act.
You want to seek monetary relief as provided under the domestic violence act, so you have to prove that you are an aggrieved person as the result of domestic violence. You have to fulfil conditions mentioned under section 3 of the DV Act. Section 3 of the DV Act defines domestic violence as
Definition of domestic violence – For the purposes of this Act, any act omission or commission or conduct of the respondent shall constitute domestic violence in case it-
(a) harms or injuries or endangers the health, safety, life, limb or well-being whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injuries or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or(d) otherwise injuries or causes harm, whether physical or mental, to the aggrieved person.
Monetary relief is one of the relieves mentioned under DV Act. The magistrate is empowered under section 20 of the DV Act to pass an order of monetary relief if an aggrieved person is being subject to economic abuse. Deprivation of all or any economic or financial resources to which aggrieved person is legally entitled is an act of economic abuse.
The denial of household necessities of the wife is also an economic abuse. You have been illegally prohibited by your husband to get medical aid, your property is disposed of by your husband and even your salary is withdrawal by your husband.
These are the act of economic abuse and you are entitled to get economic relief under section 20 of the DV Act. The monetary relief to be ordered by the Magistrate under Section 20 of the DV Act, is to meet the expenses incurred and the loss suffered by the aggrieved person. The loss suffered is nothing but the loss of financial resources to be paid by the husband to his wife towards her maintenance.
It is not necessary to get monetary relief first, you can approach the Magistrate under section 125 of the Code of criminal procedure for maintenance.
It would be easier than section 20 of the DV Act to get maintenance order because you have to prove only that your husband neglects or refuses to maintain and you are unable to maintain yourself. The monetary relief paid by way of maintenance can be an order under Section 125 of the Code of criminal procedure.
If maintenance order passed by the Magistrate under section 125, it shall not be a bar to avail monetary relief under section 20 of the DV Act. Section 20(1)(d) of the DV Act, which states that the monetary relief granted under Section 20 of the Act may include an order for maintenance, in addition to an order of maintenance under Section 125 of the Code.
Thus, it is crystal clear that a wife, who has suffered domestic violence by the act of the husband in neglecting or refusing to maintain her is entitled to approach the Judicial Magistrate seeking an order under Section 125 of the Code, which itself is a monetary relief under Section 20 of the Act.
My father built one house. After his death, some disputes arose between sons. My elder brother filed a civil suit for partition of the house. The decree has passed in my favour, but its execution is still pending.
He is trying to dispossess me from the house and also wants to stop the execution of that decree. Therefore, approached the executive magistrate and moved an application under section 145 crpc. The magistrate has passed that order without giving me an opportunity of hearing. This is indeed the violation of natural justice. What should I do?
According to the Code of Criminal Procedure (CrPC), the Executive Magistrate does not have the authority to decide the title dispute under section 145. The power to adjudicate disputes regarding the title of the property lies solely with the civil court. Therefore, any order passed by the Magistrate under section 145 in such cases is null and void.
If a competent civil court has already passed a decree in your favour regarding the title dispute, then you should approach the court for its execution. The person who is in possession of the land has the right to retain their possession until the final judgment of the competent civil court. Therefore, the Magistrate cannot dispossess a person in whose favour a decree has been passed.
The purpose of section 145 is to maintain peace and tranquillity in the case of property disputes. The interference of the Magistrate is necessary to protect the interest of the genuine party. However, the Magistrate cannot dispossess a person who is in lawful possession of the property.
If the Magistrate has passed an order that violates the principle of natural justice and transcends his power, then the order is null and void. The Magistrate must hear all parties before passing any order.
If you find yourself in this situation, you should file a revision petition before the Court of Sessions. The revisional court shall appreciate the evidence produced before the Magistrate and set aside the order if it finds that the Magistrate has encroached upon its jurisdiction.
Section 145 of the Code of Criminal Procedure provides a temporary remedy to maintain the status quo until the final adjudication passed by the competent court. It should not be invoked to decide the rights and titles of parties. Only a competent civil court has the power to decide such disputes as it affects the civil rights of the parties involved.
Whether the court can take cognizance of domestic violence committed prior to the enforcement of the DV Act?The Protection of Women from Domestic Violence Act, 2005 came into force in the year 2005. This Act came into force when several acts of domestic violence had been committed in the shared household and had made the life of woman miserable. Your main question is whether the act of domestic violence committed prior to the coming in force of this Act, can be taken is considered by the court and appropriate order can be passed by the court.
There is no such bar has been put under this act to refrain the court from taking into consideration of such acts in passing an order under the domestic violence Act. In Saraswathy v. Babu, (2014) 3 SCC 712; the supreme court has held that
We are of the view that the act of the respondent-husband squarely comes within the ambit of Section 3 of the DVA, 2005, which defines “domestic violence” in wide terms. The High Court made an apparent error in holding that the conduct of the parties prior to the coming into force of the DVA, 2005 cannot be taken into consideration while passing an order.
Your sister having being harassed by her husband and in-laws since 1998 is entitled to taking shelter of this Act despite the fact that offence of “domestic violence” as mentioned in section 3, has been committed prior to the coming into force of this Act.
She is entitled to a protection order and residence order under Sections 18 and 19 of the domestic violence Act along with the maintenance as allowed by the trial court under Section 20(1)(d) of the domestic violence Act. Apart from these reliefs, she is also entitled to compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by the respondent-husband.In Savita Bhanot v. Lt. Col. V.D. Bhanot, (2010) 118 DRJ 391; the Delhi high court has expressed its view as
It is a historical reality that the women in our society have been subjected to discrimination, misbehaviour and ill-treatment, not only outside but, also inside their house, the main causes for their plight being (i) illiteracy (ii) economic dependence on men and (iii) insensitivity to their rights and their dignity.
Even a working woman, whether she be a construction worker who works side by side with her husband or a well-educated and a suitably employed professional is not always accorded the dignity and respect, which ought to be given to her on the home front.
The legislature has from time to time been making efforts to impart justice and fair play to the women by means of various statutory enactments and Protection of Women from Domestic Violence Act, 2005, is a landmark initiative taken by the Parliament to confer certain important benefits including the right of residence on a woman and to penalize those, who fail to provide those benefits to the women despite a judicial mandate in the form of the order passed by a Court under the provisions of the Act.
This Act does not punish for the offence committed under this Act except for the breach of an order of the court. It is a civil remedy provided by the criminal court. Therefore an act of domestic violence however, committed before the coming of this Act shall be taken into consideration by the court and pass appropriate order under this act for the protection of woman from domestic violence. Hence, you can file a case under this Act irrespective of the fact that act of domestic violence has committed before 2005.
My husband refused to maintain and used to say that your rich parents are capable to maintain you. After the marriage, I cannot demand from my parents to maintain me. What is the responsibility of the husband in respect of maintenance of wife and whether he can refuse to maintain?
It is the paramount duty of the husband to maintain his wife. The matter relating to grant of maintenance is governed by Sections 3(b), 18 and 19 of the provisions of the Hindu Adoptions and Maintenance Act, 1956. Section 3(b) defines maintenance and includes food, clothing, residence, education and medical attendance and treatment of wife.
Section 18 gives a special right to wife and entitled her to be maintained by her husband during her lifetime. But this right is not unfettered, this right shall be ceased if she is unchaste or ceases to be a Hindu by conversion to another religion. Maintenance of a wife, during the subsistence of the marriage, is on the husband. It is a personal obligation and it cannot be shifted upon any other person during the lifetime of husband.
On the death of her husband, this obligation sifts upon her father-in-law. But only when her husband is a co-sharer in the properties held by her father-in-law. The husband must have a share in the property.
Thus it is evident that if the husband is alive only he is under obligation to maintain you. This liability cannot be shifted upon any other family member, only on the ground that your husband has shared in the property held by the family. In Kirtikant D. Vadodaria v. State of Gujarat [(1996) 4 SCC 479]; the supreme court held that
“According to the law of the land with regard to maintenance, there is an obligation of the husband to maintain his wife which does not arise by reason of any contract—express or implied—but out of a jural relationship of husband and wife consequent to the performance of the marriage. Such an obligation of the husband to maintain his wife arises irrespective of the fact whether he has or has no property, as it is considered an imperative duty and a solemn obligation of the husband to maintain his wife.”
“Further, according to Section 20 of the Hindu Adoptions and Maintenance Act, 1956, a Hindu is under a legal obligation to maintain his wife, minor sons, unmarried daughters and aged or infirm parents. The obligation to maintain them is personal, legal and absolute in character and arises from the very existence of the relationship between the parties.”
You cannot enforce the right to maintenance against father-in-law or mother-in-law. It is enforceable only against your husband. You cannot get any relief if you file an application for attachment of property of your father-in-law in lieu of your husband.
My sister-in-law causes domestic violence. She is very greedy and tortured me because she did not get proper respect from my parents. I used to ignore her activities because I want peace in my life. She has assaulted me on several occasions and tried to throw me away from the house. She is very influential and my husband does not listen to a single word against her. Being victimize of such violence I have decided to take appropriate legal action against her. Can I file a case against her under the domestic violence act?
If you are facing domestic violence from your sister-in-law, you may file a complaint against her under the Domestic Violence Act 2005. As you are living in a shared household with her, you have a right to protection against any form of violence under the Act. Section 12 of the Act provides for the right to file a complaint of domestic violence and seek relief for the same.
You may approach the nearest Protection Officer, Service Provider, or Police Station to file a complaint under Section 12 of the Act. The complaint should include details of the domestic violence you are facing, the nature and extent of the violence, and any evidence that supports your claim. The authorities will take necessary steps to ensure your safety and provide you with protection.
It is important to note that the Act defines domestic violence in a broad manner, including physical, verbal, emotional, sexual, and economic abuse. Therefore, any form of violence, including harassment, threats, or intimidation, can be considered domestic violence under the Act.
Scope of Domestic Violence Act
Domestic violence is a particularly heinous form of violence as it occurs within the confines of the family home. It can take on many different forms, including physical, mental, and verbal abuse. The term "domestic violence" encompasses all forms of abuse that occur within a shared household, and is not limited to violence between spouses but also includes abuse by other family members. It should be noted that abuse can occur regardless of whether the abuser is living in the shared house.
Domestic violence is often the result of a regressive and exploitative mindset. One common perpetrator of domestic violence is the sister-in-law, who may hold a position of dominance within the household. Fortunately, the provisions of the Domestic Violence Act offer several remedies to victims, and provide protection from all forms of violence.
Based on the information you have provided, it appears that your sister-in-law is the perpetrator of domestic violence. You have the right to file a complaint against her under section 2(q) and 3 of the Domestic Violence (DV) Act. The Supreme Court has also ruled in the case of Sandhya Manoj Wankhede vs Manoj Bhimrao Wankhede (2011) 3 SCC that an aggrieved person can file a complaint against any relative of the husband, including the sister-in-law. Therefore, it is likely that your complaint against your sister-in-law will be upheld.
If you decide to file a complaint, you may do so either by yourself or through a protection officer. However, it is advisable to seek the assistance of a protection officer who can guide you through the entire process. The protection officer will prepare an incident report and submit it along with the complaint to the appropriate court. The magistrate will consider the incident report and pass any orders that are deemed appropriate in your case.
Produce evidence along with the complaint
Considering the circumstances of your situation, it would be beneficial to apply for a protection order to prevent any further domestic violence from occurring. In order to establish a prima facie case that your sister-in-law has committed domestic violence, it is important to provide some evidence along with your complaint. The burden of proof is on you to demonstrate that your sister-in-law has been abusive, and this can be done through either direct or circumstantial evidence.
Although your sister-in-law did not inflict any physical or bodily injury, her repeated threats, humiliation, and verbal abuse constitute emotional and verbal abuse under the DV Act. Such abuse may not leave visible marks on the body, making it difficult to produce direct evidence. Therefore, it is advisable to include all incidents and circumstances in your complaint to establish a circumstantial case.
Under section 18 of the DV Act, you can request a protection order to prohibit your sister-in-law from committing, aiding, or attempting to commit any form of domestic violence. Additionally, you can seek a residence order under section 19 to prevent your sister-in-law from expelling you from the shared household. As a resident of the matrimonial home, you have the right to reside in the house, and a residence order can prevent your husband from dispossessing you from your home.
Whether a company is liable for the offence of cheque dishonour under section 138 of the NI Act?When a company issued a cheque and it is dishonoured by the drawee bank it is said that offence under section 138 of the negotiable instrument act, is committed by the company. But the company cannot be prosecuted for the offence because it is a legal entity and no physical punishment can be imposed upon a company.
When such an offence has been committed by a company its director will be punished for the offence under section 138. A company performs all acts through its directors so vicarious liability shall be imposed upon its directors.
In N. K. Wahi vs Shekher Singh (2007) 9 SCC; the supreme court has held that under section 141, N I Act, if any offence has committed by a company then every person who is a director or employee is not liable, only that person is liable who was in-charge for the conduct of the business of the company at the time when the cheque was issued.
Hence, if the offence has committed by a company the person responsible for the affairs of the company at that particular time when the cheque was issued, shall be liable and punishable under section 138. Section 141 does not postulate that all the directors are liable, this section envisages constructive or vicarious liability upon the directors for the offence punishable under section 138.
It infers from a co-joint reading of section 138 and 141, that only those persons or directors will be liable for the offence who, at the time of issuance of cheque, in-charge of the affairs of the company.
In N.K. Wahi v. Shekhar Singh, (2007) 9 SCC 481; the supreme court has held that “to launch a prosecution, therefore, against the alleged Directors there must be a specific allegation in the complaint as to the part played by them in the transaction.
There should be clear and unambiguous allegation as to how the Directors are in-charge and responsible for the conduct of the business of the company.”
In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla [(2005) 8 SCC 89; a clear case should be spelt out in the complaint against the person sought to be made liable.
Therefore, a complaint must clearly show that who was the responsible person for the affair of business of the company at a particular time when the alleged cheque was issued.
Sir, how to file a complaint under the Negotiable Instrument Act? I am a software engineer and working in Infosys. One of my colleagues met financial hardship so he requested me to give five lakh rupees. Therefore, I remitted three lakh rupees in his bank account. At the same time, I took a print out of that transaction record and sent it on his WhatsApp number.
After seven months he issued a cheque valued rupees three lakh. That cheque was dishonoured due to insufficient fund. I think he is not willing to pay that amount so I want to take legal action against him under the NI Act. Please guide.
Section 142 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:
Provided that the cognizance of a complaint may be taken by the Court after the prescribed period if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.
(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.
Ingredients:
The only complaint can be filed by the payee of the cheque. The criminal proceeding will be initiated by the filing of the complaint.
Such complaint shall be filed before the court of the Metropolitan Magistrate or a Judicial Magistrate of the first class. No other court has jurisdiction in respect of cheque bounce.
The complaint shall be filed within one month of the date on which the cause of action arises.
Cause of action arises when the drawer of the cheque is failed to pay an amount of money to the payee within 15 days of the date of receiving of demand notice.
Rakesh Nemkumar Porwal vs Narayan Dhondu Joglekar 1993Cri L J 680 (Bom) under clause (c) of the section 138 NI Act, 15 days’ time is granted to the drawer of the cheque to make payment and unless this period elapsed and no payment was made, the drawer was not liable for any offence under section 138 of the NI Act.
N. Venkata Sivaram Prasad vs Rajeshwary Construction 1996 Cri. L. J. 3409 (AP) complaint cannot be filed unless the drawer of the cheque fails to make the payment to the payee within 15 days of the receipt of the demand notice.
My friend issued a cheque for the discharge of his liability but it is dishonoured due to insufficient fund. I want to know that when it can be said that offence under section 138 has committed.
Dishonour of cheque is an offence under Section 138 of the Negotiable Instrument Act. The drawer of the cheque is the principal offender under Section 138.
payee presented the cheque for encashment within three months (within the period of its validity) from the date of issue of the cheque;
drawee bank returned the cheque as unpaid;
payee upon receiving the information about dishonour of cheque has sent a demand notice to the drawer for payment of money to which cheque was issued.
the drawer failed to make the payment within fifteen days from the date of receiving of demand notice.
The payee must send the demand notice upon the drawer within thirty days from the receiving of information about dishonour of cheque. This is the limitation period granted for the issue of legal notice (demand notice) to the drawer.
When the offence is said to be committed?
The offence is committed when drawer did not make payment within fifteen days from the date of receiving of the legal notice. If drawer made payment within said period then no offence is made out under section 138 of NI Act. Section 138 provides 15 days time to the drawer to make payment and honour the cheque which he issued for discharge of his liability.
What is called dishonour of cheque?
Where a cheque is drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person and it is returned by the bank as unpaid, then it is called dishonour. The cheque may be dishonoured on the following reasons:
insufficient fund in the account, or
exceeding the amount arranged to be paid from that account by an agreement made with that bank, or
the cheque was stopped by the drawer without any cogent reason, or
account has closed by the drawer before the presentation of cheque etc.
When drawer failed to make payment within 15 days of receiving of legal notice then payee must file a complaint under section 142 of the NI Act. He must file a complaint within one month of the date on which the cause of action arises.
When does the cause of action arise?
The cause of arises when the drawer of cheque failed to make payment within 15 days from the date of receiving the legal notice. The Supreme Court in Kamlesh Kumar v. the State of Bihar, (2014) 2 SCC 424 held that
If the notice (drawer of cheque) fails to make the payment within 15 days from the date of receipt of the notice, the offence can be said to have been committed and in that event, the cause of action for filing the complaint would accrue to the complainant and he is given one month’s time from the date of cause of action to file the complaint.
Hence, an offence under section 138 commits when the drawer of the cheque fails to make payment within 15 days from the date of receiving of legal notice from the payee. Section 138 gives 15 days time to the drawer for making payment so that absolve himself from the offence.
