section 409 of ipc
VINOD RAWAT
(Querist) 25 June 2011
This query is : Resolved
CAN A BANKER/BANK EMPLOYEE BE CONVICTED UNDER SECTION 409 OF IPC FOR HONOURING LOST CHEQUES INSPITE OF SUPPLYING COPY OF DDR AND PUBLICATION IN NEWSPAPER ALONG WITH APPLICATION REGARDING THE LOSS OF CHEQUES AS PER THE REQUIREMENT OF THE BANK FOR STOPPING THE PAYMENT WHICH WAS DULY RECEIVED BY THE BANK AND THE BANK HAD ALSO DEDUCTED/CHARGED THE AMOUNT FROM THE ACCOUNT OF ACCOUNT HOLDER FOR STOPPING THE PAYMENT AND AFTER THE CHEQUES IN QUESTIONS WERE HONOURED THE SYSTEM/BANK RECORDS ARE SHOWING STOP PAYMENT INSTRUCTIONS BY THE CLIENT.
prashant pundhir
(Expert) 26 June 2011
Dafinetly he may be convicted as it is the breach of trust by the banker .The account holder completed all of his formalities and timely informed to his bankers .So what left now ?
However lot of things are left from the view of a criminal expert .
Anyway he may be convicted if the case is proved .
Advocate. Arunagiri
(Expert) 26 June 2011
I dont think the banker would be booked for 409.
There is no motive, only by mistake it was done.
The account holder can claim compensation, he will get his money.
R.Ramachandran
(Expert) 26 June 2011
Unless it is proved that the banker / bank employee had siphoned off the money for his own benefit, he cannot be charged with criminal breach of trust. On the contrary, as very aptly pointed out by Mr. Arunagiri, it can only be a mistake (blunder if one would like to call) committed by the bank / bank employee.
As per the facts given by the querist, there is no way that the bank can escape responsibility. The bank necessarily has to compensate the querist. It may take departmental action against the clerk concerned.
BUT SURELY IT DOES NOT MAKE OUT A CASE FOR Sec. 409 IPC.
Guest
(Expert) 26 June 2011
Dear Vinod,
Before I express my views, you may like to see the extracts of caselaws references below:
Section 138 - 'Stop Payment' - After issuance of a cheque, subsequent notice by drawer to the drawee or the Bank for stoppage of payment does not preclude action under Section 138 by the drawee or holder in due course. 1996(1) Civil CC 309 (SC) : 1996(1) Apex Court Journal 99 (S.C.) & 1996(2) Apex Court Journal 555 (S.C.) overruled. (M/s Modi Cements Ltd. Vs Kuchil Kumar) 1998(1) APEX COURT JOURNAL 554 (S.C.) : 1998(2) CIVIL COURT CASES 1 (S.C.) : 1998 ISJ (BANKING) 0308 : 1998 (1) ALL INDIA CRIMINAL LR (S.C.) 0802 : 1998 (3) CIVIL LJ 0276 : 1998 (2) RCR (CRL.) 0077 : 1998 (1) BANKING CASES 0421 : 1998 (92) COMP. CASES 0088 : 1998 AIR SCW 0842 : 1998 (2) ALL CJ 0905 : 1998 (1) CRIMES 0268 : 1998 CRL. L.J. 1397 : 1998 (1) ALT (CRL.) 0290 : 1998 (2) CLT 0041 : 1998 CCLR 0207 : AIR 1998 SC 1056 : 1998 (36) ALL CRI C 0593 : 1998 (2) APLJ 0021 : 1998 (2) BLJR 0954 : 1998 (1) CAL HN 0133
Now my views:
Merely because the banker has charged on account of stop payment that cannot make the banker or its clerk liable for breach otrust. There are several other issues that have to be taken care of, more specifically the holder in due course. The. rights of a holder in due course of a negotiable instrument are qualitatively, as matters of law, superior to those provided by ordinary species of contracts.
If you, as a drawer, intentionally tried to withold payment of the holder in due course without any reason just on the pretext of loss of cheque that indicates intentional dishonour of cheque on your part rather than a case of breach of trust against your banker.
If you have notified in paper about loss of cheque without any request of or intimation to holder in due course your action was quite illegal. If only the holder in due case has encashed the cheque the bank cannot be held liable for honouring of the cheque after its satisfaction.
So, if you try to launch a case of breach of trust, besides the aforesaid reasons, that may rebounce on you on several other counts also.
Arun Kumar Bhagat
(Expert) 26 June 2011
To prosecute someone in criminal law, there must be a guilty motive and wrongful gain & wrongful loss. Latin maxim is "Actus non faciet nisi reum mens sit rea." In the given case you have to prove his malafide intention otherwise it shall be treated as criminal negligence.
