Hooking the bouncing of cheque

When the concept of money was invented it was also counter moved with the concern of appropriate and safer modes of its transactions. With the advancement of time and progressive approach of society as well as the cumulative expansion of trade and commerce the incumbent monetary transaction between human beings becomes complex, hence the policy framers ,time to time, compelled by circumstance to innovate new rules and methods to regulate the easier forms of transaction. The present world economy which is functioning its wing beyond national level, in a large scale relying in its transaction to the mechanism of negotiable instruments in the forms of bill of exchange, promissory note, bank draft, cheque etc  which has  earned the credibility and reliability in the regime of transaction affairs.
Cheque as a form of negotiable instruments always is a safer means than hand cash transaction coupled with the advancement of easier portable facilities as well as permanent record and receipt of transaction. Since business activity has been increased, banking transaction has also been confronted with the forms of criminal matters which led to increase the number of criminal cases in relation to the same orientation. Among them occurrence the prank of cheque dishonor or cheque bouncing occurs very often and the concerned parties bears the objectionable pain in drawing the specified amount of money. Therefore, to protect the interest of the holder, cheque dishonor has been brought under the domain of criminal offence punishable under the provision of section 138 of Negotiable Instrument (NI) Act-1881.
A cheque is always payable on demand and remains as much as good for certain period after issue and in case when a cheque is dishonored the legal mechanism are set in motion attracted by aforesaid section. But what is meant by cheque dishonor, to understand it look to be given to the section 92 to the NI Act which said that a cheque is said to be dishonored when the drawee of the cheque makes default in payment upon duly required to pay the same. Therefore if on the presentation the banker does not pay dishonored take place and the holder acquires the rights to recourse against the drawer and other parties of the cheque. Dishonor to pay the cheque may intercourse various reasons but the offence under section 138 will only be attracted if the cheque is bounced by the bank unpaid either because of the amount of money standing to the credit of that account is insufficient to honor the cheque or that it exceeds the amounts arranged to be paid for from the account by an agreement made with the bank.
The offence punishable under this section to be tried in the Court of Session which is to be presented in the form of written complaint within one month from the date on which the cause of action arises. But the entitlement of the remedy under this section is subject to the fulfillment of three conditions as envisaged in section 138. Firstly, the holder must present the cheque within the earlier period of six months from the date on which it is drawn or within the period of its validity; secondly, he has to give a notice to the drawer demanding to pay the said amount within thirty days of the receipt of the information from bank regarding the return of the cheque as unpaid; thirdly, the drawer must fail to make the payment of the said amount to the holder within thirty days of the receipt of the notice.
The notice may be served either by personal delivery to the person to whom it to be given or by registered post addressing to his usual or last known place of abode or business or by publication in a daily Bangla national newspaper having wide circulation. While filing the complaint it should be attached with the photocopy of the cheque, receipt of dishonor, notice, postal receipt, acknowledgement receipt. If for any reason the holder failed to give notice within thirty days from the date of dishonor he may give the notice within next thirty days by presenting the cheque again for payment.
In case when the offence is committed by a company is proved to have been committed with the consent or connivance or is attributable to any neglect on the part of any director, manager, secretary or officer shall also be deemed to be guilty of that offence. The prescribed punishment under this section is one year imprisonment or with extendable fine of trice the amount of the cheque or with both. Appeal is also available subject to deposit of an amount not less than fifty percent of the amount of the dishonored cheque. Important to mention that the remedy available to the holder under NI Act is an additional remedy, since he dose not lose his right under the Code of Civil Procedure (Order xxxvii) to claim the amount due to him as section 138(3) provides that the holder of a cheque retains the rights to move the civil court to recover the unpaid amount.

The writer is Student of Law University of Dhaka.