Court : Orissa
Reported in : 92(2001)CLT378; 2001CriLJ2322; 2001(I)OLR607
..... 138, negotiable instrument act, 1881 (in short the 'act') by the petitioner with respect to two cheques totally amounting to rs. ..... ratio this court finds that the facts and circumstances available in this case is quite distinguishable from the facts and circumstances in the case of m/s dalmia cement (supra) inasmuch as in the present case neither the accused has denied or disowned receipt of the notice issued after bouncing of the cheques on its first presentation nor the opposite party has made such an averment either in the complaint or the statement which he adduced in the court of s. d. j. m. . ..... considering the aforesaid fact the apex court held that cause of action, arose in that case after bouncing of cheque on its first presentation inasmuch as after such bouncing the statutory notice as provided in the clause (b) of the proviso to section 138 was issued. ..... he may therefore, without taking pre-emptory action in exercise of his such right under clause (b) of section 138, go on presenting the cheque so as to entitle him to exercise such tight at any point of time during the validity of the cheque. ..... therefore, issue of second letter after the subsequent bouncing of the cheque does not give rise to a fresh or further cause of action within the meaning of chapter xvi of the act. .....
Tag this Judgment!Court : Orissa
Reported in : 2005CriLJ3894
..... jointly and severally liable for the act of the omission and commission of the offence committed by them under section 138(c) read with section 141 of negotiable instruments act.'6. ..... on accusation of offence under section 138 of the negotiable instruments act (hereinafter referred as n. i. ..... this sub-section reads as follows :--'(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 ..... the complainant presented the said cheque on 1-10-2001 through its director to ..... applicable to the present case. ..... supra) filed on behalf of the petitioners would not be applicable to the present case.8. ..... in the present case as depicted in the complaint petition, the petitioners were directors, of the accused-company at the time of ..... is no material whatsoever in the complaint petition to show that the petitioners were in charge of, and were responsible to the accused company for conduct of its business so as to be vicariously liable for the act or omission of the company in terms of section 141(1) of n. i. ..... office or employment in the central government or state government or a financial corporation owned or controlled by the central government or the state government, as the case may be, he shall not be liable for prosecution under this chapter'. 4. .....
Tag this Judgment!Court : Orissa
Reported in : 91(2001)CLT153; 2000(II)OLR330
..... petitioner assails the orders of the learned sub-divisional judicial magistrate, sadar, cuttack dated 3-9-96 dismissing his applications under section 5 of the limitation act filed along with the complaints under section 138 read with section 142 of the negotiable instruments act, 1881 (hereinafter referred to as 'n. i. ..... the negotiable instruments act is a special statute and chapter-xvii thereof makes provision for punishment for the failure to make payment of the amount of money to a payee towards the bounced ..... accordance with law and therefore, the orders dated 3-9-96 impugned in both the revisions are set aside and the learned magistrate is directed to consider the applications of the petitioner filed under section 5 of the limitation act afresh in accordance with law without being influenced by any observation made herein, on its own merit on which i express no opinion. ..... the hon'ble apex court while considering computation of the period of one month for filing of the complaint, applied and took note of section 12 (1) and (2) of the limitation act, a reference has also been made to the decision of this court in the case of janardhan mohapatra v. ..... question arises as to whether the learned magistrate has rightly dismissed the petitions filed under section 5 of the limitation act for condonation of delay in filing the complaint under section 138 of the n. i. ..... the present criminal revisions are filed against the orders passed by the learned magistrate dated 3-9-96 in two separate .....
Tag this Judgment!Court : Orissa
Reported in : AIR1966Ori230
..... in the present case, therefore, although the plaintiff is neither a 'holder' nor a 'holder in due course' because his name has not been mentioned in the endorsement he cannot recover his claim on the basis of a promissory note itself as governed by the negotiable instruments act. ..... he is neither a 'holder' nor a 'holder in due course' as defined under sections 8 and 9 respectively of the negotiable instruments act: as his name is not mentioned in the endorsement the plaintiff is not'entitled in his own name to the possession thereof, and to receive or recover the amount due thereon from the parties thereto' (section 8),'nor can ..... the expressions ''endorsed', 'negotiated' and 'transferred' in section 43 and in section 118 of the negotiable instruments act show that the transfer otherwise than by negotiation is permissible; if any negotiable instrument can be assigned otherwise than by an endorsement the assignee can sue; the other modes of transfer are either by operation of law or transfer as an actionable claim as contemplated by section 130 of the transfer of properly act. ..... nothing in the foregoing section oftin's chapter applies to stocks, shares or debentures, or to instruments which are for the timebeing by law or custom, negotiable, or to anymercantile document of title to goods. ..... section 130 enacts that the transfer of an actionable claim can be effected only by an instrument in writing but section 137 provides that nothing in the chapter shall apply negotiable instruments. .....
Tag this Judgment!Court : Orissa
Reported in : AIR1966Ori194
..... indeed chapter 4 of the negotiable instruments act deals with the manner of the negotiation of these instruments. ..... in the ordinary way under section 48 of the act, a hand-note would be negotiated by endorsement and delivery thereof; a promissory note endorsed in blank or a promissory note to the holder or bearer, is negotiated in simpler fashion, but the negotiable instruments act itself does recognise that negotiable instruments may be transferred and for consideration otherwise than by negotiation a transfer of a promissory note by means of a registered instrument is valid. ..... thus, where the holder of a promissory note sells his right, title and interest in the note to another but without endorsing it, the assignee is within the definition of ' holder ' in section 8 of the negotiable instruments act quoted above. ..... section 8 of the negotiable instruments act defines 'holder' as follows:'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 ..... there appears to be some misconception in the mind of the courts below that endorsement is the only means by which a negotiable instrument can be transferred. ..... in the present case admittedly there has been no payment not even a demand for payment on the promissory note between 14th march, 1959 when the promissory note was executed and december 14, 1959 when it was transferred to .....
Tag this Judgment!Court : Orissa
Reported in : IV(2004)BC317; 2004CriLJ2415; 2004(I)OLR554
..... the non obstante limb provided in section 142 of the negotiable instruments act is not intended to expand the powers of a magistrate of first class beyond what is fixed in chapter iii of the code. ..... under section 138 is concerned no court shall take cognizance except upon a complaint made by the payee or the holder in due course of the cheque, the second is this : so far as the offence under section 138 of the negotiable instruments act is concerned such complaint shall be made within one month of the cause of action. ..... opposite party received the notice on 10-6-1997 but failed to pay the money within the time stipulated, as a result of which the complaint was filed alleging therein that the offence under section 138 of the negotiable instruments act has been committed by the opposite party. ..... the said cheque was presented on 12-4-1997 in the state bank of india, tusura branch. ..... the apex court in the aforesaid decision observed as follows :'the total amount covered by the cheques involved in the present two case was rs. ..... the very object of enactment of provisions like 138 of the act would stand defeated if the sentence is of the nature passed by the trial magistrate. ..... section 29, which falls within chapter iii of the code, contains a limit for a magistrate of first class in the matter of imposing a sentence i.e. ..... act, question of pecuniary limits as contemplated under section 29(2), cr.p.c. ..... act is not challenged in this revision. .....
Tag this Judgment!Court : Orissa
Reported in : 1994(I)OLR165
..... even the statement of objects and reasons of the banking, public financial institutions and negotiable instruments laws (amendment) act, 1988 (act 66 of 1988) which introduced chapter xvii to the act including section 138 also shows the same purpose as reason for the enactment. ..... by the section that despite the fact that the cheque is issued with the know- ledge that it would be dishonoured by the bank, an offence would not be taken to have been committed if by the time the cheque is presented and before it is returned unpaid by the bank for either of the two reasons, the drawer takes step to make the necessary deposit to satisfy the cheque or makes arrangement for its payment by the bank otherwise. ..... 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 ..... hence where the complainant has come with a case that the cheque had been issued to meet any debt or liability but that the cheque when presented was refused payment because either of the two reasons even though the ostensible reason advanced by the bank was stoppage of payment and the court has taken cognizance of the offence and has directed .....
Tag this Judgment!Court : Orissa
Reported in : 110(2010)CLT2
..... section 26 of the negotiable instruments act (in short, 'the act') provides that every person capable of contracting, according to the law to which he is subject, may bind himself & be bound by the making, drawing, acceptance, indorsement, delivery & negotiation of a promissory note, bill of exchange or ..... for consideration;(b) to (e) xxx xx xxx(f) as to stamp 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 obtained 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 ..... as to negotiable instruments. ..... reported in : air 1962 patna 384 wherein it has been held that where a principal gives an agent an express authority to do a particular act or class of acts on his behalf, the principal is bound as regards third persons, by every act done by the agent which is necessary for the proper execution or such authority, even though the existence of such authority is unknown to the third ..... in the present case, since the son of the decree-holder has received the money on the revenue stamp, the executing court should have considered the same in view of the above provision of law, the presumption to be ..... chapter-xiii of the said act provides special rules of evidence .....
Tag this Judgment!Court : Orissa
Reported in : 84(1997)CLT560; 1997(II)OLR284
..... knowledge that rate of wages and hours for work by labourers vary from work to work and the same under no circumstances can be similar to one another and this obviously mean for the purpose of the act to have licence under section 12 is not to have a licence for all times to come, but a licence at different time as and when so required keeping in view the nature and period of contract undertaken and number ..... 1 cancelled tender of all, it being an instrumentality of the state, should not have violated principles of natural justice by not inviting the petitioner for negotiation notwithstanding the fact that the rate quoted by the petitioner was the lowest ..... - (1) with effect from such date as the appropriate government may, by notification in the official gazette, appoint, no contractor to whom this act applies, shall undertake or execute any work through contract labour except under and in accordance with a licence issued in that behalf by the licensing officer ..... with appointment of licensing officers with which we are not presently concerned, since there is no doubt in regard to that point section 12 of the act is quoted for better appreciation. ..... 1 and any public authority or government organisation or instrumentalities of the state should not make it condition precedent while considering tender, though it will be competent on the part of those authorities to include such requirement as one of the terms in the agreement to be entered and it would ..... come under chapter - iv of the act. .....
Tag this Judgment!Court : Orissa
Reported in : 2006(1)ALD(Cri)29; IV(2005)BC210; 99(2005)CLT753
..... alleging offence under section 138 of the negotiable instruments act (in short, 'the n.i. ..... according to this section, a magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the ..... from the opposite party, then he gave a cheque towards repayment of the amount, the cheque was presented in the bank, but it bounced back thereafter, the petitioner did not pay the amount. ..... in revision, the high court held that the question whether notice as required under section 138, of the act has been served has to be decided during trial and the complaint ought not to be dismissed at the threshold on the purported ground that there was no proper service ..... the court, shall in respect of every proceeding under this chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact ..... aggrieved, the petitioner has filed the present application under section 482 of the ..... act mandates summary trial for all offences under chapter-xvii of the act so that quick disposal of the case can be achieved an the payee of the cheque would get ..... dispensed with rather, it indicates that after filing of the complaint in writing, the court has to undertake the procedure provided in chapter-xv and xvi of the cr.p.c. .....
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