4th Module
4th Module
• This transaction generally takes place between the debtor and the
creditor. The debtor creates the instrument promising the amount of
money on a specified date.
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Types
• Promissory notes-
• There Are Two Parties to a Promissory Note:
• (1) Maker: Maker or drawer is an individual or entity who makes or draws the
promissory note with a promise to pay a certain sum as is specified in the promissory
note. Maker is also known as promisor.
• (2) Drawee: She/He is an individual, in whose favour the note is prepared. In usual
cases, the drawee is also the payee until and unless the promissory note is transferred
specifically in favour of the payee. For e.g. Ram is considered a drawer if he promises to
pay Shyam Rs.5000 (Shyam is the drawee). However, if the same promissory note is
transferred in favour of Rohan, then Rohan becomes the payee.
• (2) Payee: The payee is the person in whose favour the promissory note is drawn.
Types
Promissory notes- Features
1. Printed/Written Agreement – A promissory should be in writing, and an oral promise to
pay money is not accepted.
2. Pay Defined Amount – It is a promise to pay the money on a particular time or when
demanded. The mentioned amount can neither be added or subtracted.
3. Signed Documents – The document is duly signed and drawn by the drawer and
stamped.
4. Unconditional Promise – The promise to pay a certain amount of money must be
absolute in all cases. In such notes, a conditional guarantee is not accepted.
5. Legal Composition – All payments should be made in the nation’s legal currency.
6. Detailed Information – The note has all the required information including the name of
the drawer and payee, date of maturity, terms of repayment, issue date, name of the
drawee, name, and signature of the drawer, principal amount, and the rate of interest,
etc.
Characteristics
• Bills of Exchange-
• According to the Negotiable Instruments Act 1881, a bill of exchange is
defined as “an instrument in writing containing an unconditional order,
signed by the maker, directing a certain person to pay a certain sum of
money only to, or to the order of a certain person or to the bearer of the
instrument”.
Characteristics
Features of Bill of Exchange
• It is important to have a bill of exchange in writing
• It must contain a confirmed order to make a payment and not just the request
• The order should not have any condition
• The bill of exchange amount should be definite
• Fixed date for the amount to be paid
• The bill must be signed by both the drawee(Purchaser) and the drawer (Seller)
• The amount stated on the bill should be paid on-demand or on the expiry of a
fixed time
• The amount is paid to the beneficiary of the bill, a specific person, or against a
definite order
Characteristics
• Features of Bill of Exchange
• Drawer: It is the party who sells the goods, issues the bill of exchange, and is
yet to receive the money from the debtor.
• Drawee: It is the party who purchases the goods on credit and to whom the bill
of exchange is issued. Basically, drawee is the debtor and the drawer is the
creditor.
• Payee: It is the party that finally receives the payment on the due date. If there
is no transfer of the bill of exchange, then the drawer and the payee is the
same.
Characteristics
• BoE Advantages
• Given that it is a legal document, it makes the process of recovery much
easier in case of default by the drawee.
• The bill bearer can get the bills of exchange discounted from a bank at
any time before the due date.
• The bills of exchange can be easily transferred from one party to
another through endorsement.
Types of Bills
• types
• Documentary Bill- In this, the bill of exchange is supported by the
relevant documents that confirm the genuineness of sale or transaction
that took place between the seller and buyer.
• Demand Bill- This bill is payable when it demanded. The bill does not
have a fixed date of payment, therefore, the bill has to be cleared
whenever presented.
• Usance Bill- It is a time-bound bill which means the payment has to be
made within the given time period and time.
• Inland Bill- An Inland bill is payable only in one country and not in any
other foreign country. This bill is opposite to the foreign bill.
Types of Bills
• types
• Clean Bill- This bill does not have any proof of a document, so the
interest is comparatively higher than the other bills.
• Foreign Bill- A bill that can be paid outside India is termed as a foreign
bill. Two examples of a foreign bill are an export bill and import bill.
• Accommodation Bill- A bill that is sponsored, drawn, accepted without
any condition is known as an accommodation bill.
• Trade Bill- This kind of bill is specially related only to trade.
• Supply Bill- The bill that is withdrawn by the supplier or contractor from
the government department is known as the supply bill.
Bill of Exchange Promissory Note
Definition
A negotiable instrument issued to order the A negotiable instrument issued by the
debtor to pay the creditor a certain sum of debtor with a written promise to pay the
money within a specific date or on demand. creditor a certain amount within a specific
date or on demand.
Section
Mentioned in Section 5 of the Negotiable Mentioned in Section 4 of the Negotiable
Instruments Act, 1881 Instruments Act, 1881
Issued By
Creditor Debtor
Parties Involved
Three parties involved i.e a drawer, the Two parties involved i.e a drawer/maker and
drawee and a payee. the payee
Acceptance
Drawee needs to accept the bill of exchange No acceptance required from the drawee.
before payment.
Dishonouring of instrument
Notice served to all the concerned parties No notice served to the drawer in case of
Cheques
A cheque is a piece of document/paper that orders the
bank to transfer money from the bank account of an
individual or an organization to another bank account.
The person who writes the cheque is called the “drawer”
and the person in whose name the cheque has been
issued is called the “payee”. The amount of money that
needs to be transferred, the payee’s name, date, and
signature of the drawer are all mentioned in a cheque.
Cheques
There are certain points to remember regarding cheques which
are mentioned below:
1.A cheque can only be issued against a current or savings
bank account
2.A cheque without a date shall be considered invalid
[Link] the payee, in whose name the cheque has been issued,
can encash it
4.A cheque is only valid 3 months from the date it has been
issued
5.A 9-digit MICR (Magnetic Ink Character Recognition) code is
mentioned at the bottom of the cheque. This makes the
clearance of cheques easier for the banks.
Characteristics
• Cheque-
• General crossing (section 123)
• Special crossing (section 124)
2002 Amendment to the Negotiable Instruments Act
• The increasing number of dishonoring cheques has stated the
need for amendments to eliminate the loopholes. The
amendments of 2002 have introduced new sections from Section
143 to Section 147 that has widened the scope and diminished the
limitation of the parent Act. The introduction of five new sections
and the Amendment Act was brought into force on Feb 6, 2002.
The Sections come under Chapter XVII that was primarily for
penal provisions as the person can be charged with offenses for
dishonoring the cheques in case of deficiency of funds.
Bearer Cheque Cheques
The bearer cheque is a type of cheque in which the bearer is
authorized to get the cheque encashed. This means the person who
carries the cheque to the bank has the authority to ask the bank for
encashment.
This type of cheque can be used for cash withdrawal. This kind of
cheque is endorsable. No kind of identification is required for the
bearer of the cheque.
For example: A cheque has been signed by Arjun (drawer) and the
payee for the cheque is Varun. Varun can either go to the bank
himself or can send a third person to get encashment for the cheque.
No identification shall be required for the bearer’s name.
If a person does not want their cheque to be endorsable, they can
strike off the “OR BEARER” option mentioned in the cheque.
Cheques
Order Cheque
This type of cheque cannot be endorsed, i.e., only the payee, whose
name has been mentioned in the cheque is liable to get cash for that
amount. The drawer needs to strike the “OR BEARER” mark as
mentioned on the cheque so that the cheque can only be encashed to
the payee.
For Example: If a cheque has been signed with the name of Varun,
then only the payee can visit the bank to get an encashment for the
same for a order cheque.
Cheques
Crossed Cheque
In this type of cheque, no cash withdrawal can be done. The amount
can only be transferred from the drawer’s account to the payee’s
account. Any third party can visit the bank to submit the cheque.
In case of a crossed cheque, the drawer must draw two lines at the
left top corner of the cheque.
Account Payee Cheque
This is the same as the account payee cheque but no third party
involvement is required. The amount shall be transferred directly to
the payee’s account number.
To ensure that it is an account payee cheque, two lines are made on
the left top corner of the cheque, labelling it for “A/C PAYEE”.
Cheques
Stale Cheque
In India, any cheque is valid only until 3 months from the date of
issue. So if a payee moves to the bank to get withdrawal for a cheque
which was signed 3 months ago, the cheque shall be declared a stale
cheque.
For example: If a cheque is dated January 1, 2021, and the payee
visits the bank for withdrawal on May 1, 2021, his/her request shall be
denied and the cheque is declared stale.
Cheques
Post Dated Cheque
If a drawer wants the payee to apply for withdrawal or transfer of
money after the present date, then he/she can fill a post dated
cheque.
For example: If the date on which the drawer is filling the cheque is
May 10, 2021, but he wants the payment to be done later, he/she can
fill the cheque dates as May 30, 2021. It shall be called a post-dated
cheque.
Cheques
Ante Dated Cheque
If the drawer mentions a date prior to the current date on the cheque,
it is called ante dated cheque.
For example: If the current date is January 30, 2021, and the drawer
dates the cheque as January 1, 2021. It shall be considered as an
ante-dated cheque
New Rule for Cheques
To make high-value cheques a lot safer, the RBI has introduced an
electronic authentication system called Positive Pay from January 1st, 2021
that will allow you to share the cheque details with your bank before the
bank processes it. This additional security layer is meant to address the
rising instances of cheque fraud that have made headlines throughout
the past year. As reported by the RBI, the total volume of fraud
transactions in India was pegged at Rs. 64,681 crores between April and
September 2020 with forged or counterfeit cheques accounting for a
significant share. So, as perpetrators' methods for counterfeiting cheques
turn more sophisticated with each passing day, the launch of Positive Pay
is definitely a shot in the arm of banks. Positive Pay is essentially a tool
designed to detect fraudulent activity. It facilitates by matching specific
information related to the cheque presented for clearing, like the cheque
number, cheque date, payee name, account number, amount, and other
details against a list of cheques previously authorized and issued by the
issuer.
New Rule for Cheques
How does Positive Pay work?
According to the RBI, while most retail consumers prefer to use electronic
alternatives such as NEFT and RTGS, cheques are still a popular option
now. Before you issue a cheque, you need to share cheque details like the
name of the payee, issue date, and amount and send it to your bank via
email. When the cheque is presented to the bank for payment via CTS
Clearing, the bank will compare the instrument details received against
the details you send. In case of any mismatch, the bank may review it for
suitable action.
As reported by the RBI, the total volume of fraud transactions in India was pegged at Rs. 64,681
crores between April and September 2020 with forged or counterfeit cheques accounting for a
significant share. So, as perpetrators' methods for counterfeiting cheques turn more
sophisticated with each passing day, the launch of Positive Pay is definitely a shot in the arm of
banks.
New Rule for Cheques
Here are a few points to remember:
• The penal provisions contained in Sections 138 to 142 of the Act have
been enacted to ensure that obligations undertaken by issuing cheques as
a mode of deferred payment are honoured.
Section 138 Of Negotiable Instruments Act
Section 138 of the Act provides for circumstances under which a case for the
dishonour of cheques is filed. The ingredients required for complying with
Section 138 are as follows:
• A person must have drawn a cheque for payment of money to another for
the discharge of any debt or other liability;
• that cheque has been presented to the bank within a period of three
months; that cheque is returned by the bank unpaid, either because
insufficient of funds or that it exceeds the amount arranged to be paid
from that account by an agreement made with the bank;
• The payee makes a demand for the payment of the money by giving a
notice in writing to the drawer within 15 days of the receipt of information
from the bank regarding the return of the cheque as unpaid;
• The drawer fails to make payment to the payee within 15 days of the
receipt of the notice.
Section 138 Of Negotiable Instruments Act
Grounds For Dishonour of Cheques
1. Insufficiency of funds
2. Irregular Signature
3. Alteration
4. Pre-submission of cheque
5. Stale Cheque(after expiry)
6. Stop payment instructions
7. Frozen Account (due to court order)
Section 138 Of Negotiable Instruments Act
Procedure with regard to Section 138:
ii. The complainant or his authorized agent should appear in the witness
box and provide relevant details for filing the case. If the court is satisfied
and finds substance in the complainant, then a summons will be issued
to the accused to appear before the Court.
iii. If after being served with the summons the accused abstains himself from
appearing then the court may issue a bailable warrant. Even after this if the
drawer does not appear a non-bailable warrant may be issued.
Section 138 Of Negotiable Instruments Act
Procedure with regard to Section 138:
vi. The accused will be given an opportunity to lead his evidence. The
accused will also be afforded an opportunity to submit his documents in
support of his case, as well as witnesses in his support. The accused and his
witnesses will be cross-examined by the complainant.
vii. The last stage of the proceeding is that of the arguments after which the
court will pass judgment. If the accused is acquitted then the matter
ends, but the complainant can go on further appeal in the High Court,
similarly, if the accused is convicted, he can file an appeal in the Sessions
Court.
It must be noted that the offense under Section 138 of the Act, has been made
compoundable.
Section 138 Of Negotiable Instruments Act
Recent Supreme Court rulings for speedy disposal of cases under Section
138 of the Act:
In 2017, Delhi High Court in Dayawati v. Yogesh Kumar Gosain took into
account the question of whether an offense under Section 138, which is a
criminally compoundable case, could be settled by mediation.
Verdict:
There is no bar to utilizing the alternate dispute mechanisms including arbitration,
mediation, and conciliation (recognized under Section 89 of Civil Procedure Code,
1908) for the purposes of settling disputes which are the subject matter of offenses
covered under Section 320 of the Cr.P.C. It also stated the proceedings under Section
138 of the Act is distinct from other criminal cases and are really in the nature of a
civil wrong which has been given criminal overtones
Section 138 Of Negotiable Instruments Act
Recent Supreme Court rulings for speedy disposal of cases under Section
138 of the Act:
Recent amendment:
The Negotiable Instruments (Amendment) Act, 2018 which came into effect on
September 1, 2018, allows the Court trying an offense related to cheque
bouncing, to direct the drawer to pay interim compensation not exceeding 20%
of the cheque amount to the complainant within 60 days of the trial court’s
order to pay such compensation. This interim compensation may be paid either
in a summary trial or a summons case where the drawer pleads not guilty to the
accusation made in the complaint; or upon framing of charge in any other case.
Furthermore, the Amendment also empowers the Appellate Court, to hear
appeals against conviction under s. 138, to direct the appellant to deposit a
minimum of 20 % of the fine/compensation awarded, in addition to interim
compensation.
Section 138 Of Negotiable Instruments Act
Recent Supreme Court rulings for speedy disposal of cases under Section
138 of the Act:
Recent amendment:
The Negotiable Instruments (Amendment) Act, 2018 which came into effect on
September 1, 2018, allows the Court trying an offense related to cheque
bouncing, to direct the drawer to pay interim compensation not exceeding 20%
of the cheque amount to the complainant within 60 days of the trial court’s
order to pay such compensation. This interim compensation may be paid either
in a summary trial or a summons case where the drawer pleads not guilty to the
accusation made in the complaint; or upon framing of charge in any other case.
Furthermore, the Amendment also empowers the Appellate Court, to hear
appeals against conviction under s. 138, to direct the appellant to deposit a
minimum of 20 % of the fine/compensation awarded, in addition to interim
compensation.
Cheque Truncations System (CTS)
Cheque Truncations System (CTS)