18 December 2009
Can payee initiate prosecution for an offence under section 138 for dishonour of cheque for the second time, if he had not initiated such prosecution on the earlier cause of action ?
18 December 2009
With due respect, I would like to inform u that as per text given in the study material, "payee cannot initiate prosecution for an offence under section 138 for dishonour of cheque for the second time, if he had not initiated such prosecution on the earlier cause of action.
10 August 2024
Under Section 138 of the Negotiable Instruments Act, 1881, prosecution for dishonor of a cheque can be initiated if a cheque issued for discharge of a debt or liability is returned by the bank due to insufficient funds or if it is beyond the account’s validity. The section provides a remedy for the payee or holder of the cheque to seek legal recourse when faced with a dishonored cheque.
### Key Points on Initiating Prosecution for Dishonor of Cheque:
1. **Single Cause of Action**: - Section 138 is designed to address the dishonor of a cheque as a single cause of action. If a cheque is dishonored, the payee has the right to initiate legal proceedings under Section 138. However, if the same cheque is dishonored more than once, the matter generally pertains to the same cause of action.
2. **Multiple Dishonors**: - If a cheque is dishonored on more than one occasion, each instance of dishonor can be treated as a separate cause of action. Thus, the payee can, in principle, initiate separate proceedings for each instance of dishonor.
3. **Prosecution for Multiple Dishonors**: - The key aspect to remember is that each dishonor, if it pertains to different cheques, represents a distinct cause of action. Therefore, if a cheque is dishonored multiple times, the payee can initiate prosecution for each instance of dishonor. - However, if the cheque is dishonored multiple times but pertains to a single cause of action (e.g., a series of cheques issued in a single transaction or agreement), then the prosecution might be constrained by the principles of res judicata or related doctrines, which bar repetitive litigation on the same cause of action.
4. **No Prosecution for Uninitiated Claims**: - If the payee has not initiated prosecution for the dishonor of a cheque the first time, they might not be precluded from initiating prosecution for subsequent dishonors of the same or different cheques. The omission to prosecute an earlier dishonor does not generally preclude subsequent claims unless a settlement or agreement has been made that bars further claims.
5. **Legal Precedents**: - Various judicial precedents support that each instance of dishonor of a cheque can be the basis for separate prosecution, provided the cheques involved pertain to different transactions or agreements.
### Conclusion
You are correct in noting that the study material may suggest that prosecution cannot be initiated for the second dishonor if no prosecution was initiated for the first dishonor, likely implying a situation where the dishonors are part of a single cause of action. However, if the dishonors are separate or involve different cheques, prosecution can generally be initiated for each dishonor.
For specific legal advice and interpretation, it is always prudent to consult a legal expert or practitioner specializing in negotiable instruments or criminal law to navigate the intricacies of your particular case.
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