Cheque Bounce Case
Querist :
Anonymous
(Querist) 22 March 2010
This query is : Resolved
A proprietorship firm supplies some medical stores to a patient at the instance of a Doctor. But the invoice is raised in the name of the patient (for whose treatment the stores are intended to be used) C/o. The Docotor's name, and the goods are sent to the hospital where the patient is admitted to. The doctor who is a consultant visiting that hospital for treating the patient gives his chq for the value of the stores. The cheque bounces. Is action under NI Act maintainable against the Doc.? Can the doc be said to have incurred a legal liability?
Would our experts share their wisdom?
Guest
(Expert) 22 March 2010
Certainly yes. The doctor has issued his cheque for the cost of the medicines only and for which the Medical firm accepted it on behalf of the patient. If the Medical firm did not take it for the patient's medicines, it would have again raised the claim against the concerned patient, but it kept quiet after getting the cheque from the doctor. So doctor has the legal liability to pay the cheque amount.
Parveen Kr. Aggarwal
(Expert) 22 March 2010
Yes. The doctor will be liable for commission of an offence punishable under section 138 of the Negotiable Instruments Act, 1881. The requirement of the provision is that 'the cheque must be drawn against a legally enforceable debt or liability' and it is nowhere provided that the person who draws the cheque must have such liability against himself only. Any person may issue cheque in discharge of liablity of another and still he is liable under the provision.
B K Raghavendra Rao
(Expert) 23 March 2010
The Doctor is not legally liable to pay for the medicines supplied to his patient and therefore Section 138 of NI Act does not apply to the Doctor.
If you analyse the problem, you realise that the Doctor had only recommended or suggested for supply of medicines to the patient. The medicines were supplied to the patient and the invoice is raised in the name of the patient. Therefore, the patient is the recipient of the medicines not the doctor. Moreover, the Doctor is not an employee of the hospital but only a visiting consultant.
If the doctor has issued the cheque, it could be out of sympathy towards financial health of the patient and not out of legal liability. It could rather be treated as a token of charity.
Under such circumstances, Section 138 of NI Act does not apply to the Doctor.
Parveen Kr. Aggarwal
(Expert) 23 March 2010
The words "any debt or liability" would undoubtedly include a cheque drawn by any person towards a legally enforceable debt or liability of another person. The explanation makes it very clear that the debt or liability towards which the cheque is issued should be a legally enforceable debt or liability. This would have reference to the nature of the debt or liability and not to the person against whom the debt or liability could be enforced.
B K Raghavendra Rao
(Expert) 23 March 2010
Any debt means -
Any debt (if more than one) of the accused towards complainant
It does not mean anybody's debt.
It should be a legal debt on the drawer of the cheque.
Parveen Kr. Aggarwal
(Expert) 24 March 2010
Section 138 - Cheque issued by guarantor to discharge liability of principal debtor - Cheque dishonoured - Complaint u/s 138 is maintainable against guarantor. (I.C.D.S. Ltd Vs Beena Shabeer) 2002(2) APEX COURT JUDGMENTS 249 (S.C.) : 2002(3) CRIMINAL COURT CASES 411 (S.C.) : 2002(3) CIVIL COURT CASES 566 (S.C.)
Section 138 - Cheque issued as a security to make payment of the liability of another company - Even if the cheque is issued as security or in discharge of liability of any other person, it amounts to a liability which has been undertaken by the drawer of the cheque. (M/s Mahaplasto Ltd. Vs M/s Bushan Steels and Strips Ltd.) 2000(1) CIVIL COURT CASES 580 (P&H)
Section 138 - Cheque issued by one person towards discharge of debt of another person - Complaint can be made against drawer of the cheque only - Proceedings against the petitioner who is not the drawer, quashed. (Gummadi Industries Ltd. Vs Khushroo F.Engineer) 2000(3) CIVIL COURT CASES 209 (Mad.)
