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Mainuddin Abdul Sattar Shaikh v. Vijay D. Salvi

Criminal Appeal · Neutral citation not assigned (Criminal Appeal No. 1472 of 2009)Decided 6 Jul 2015
Criminal Appeal No. 1472 of 2009
Justice Pinaki Chandra Ghose · Justice Uday Umesh Lalit

Background

The appellant had paid Rs. 74,200 in 1999 to book a flat in a project to be developed by the respondent's company. When the project failed to materialize, the respondent personally issued a refund cheque for the same amount, which bounced on presentation. A Magistrate's court and later the Bombay High Court both acquitted the respondent, reasoning that the company (not the respondent personally) should have been made the accused and that the cheque amount exceeded the actual liability.

Decision Breakdown

The Supreme Court held that Section 138 of the NI Act fixes liability on the drawer of the dishonoured cheque, and since the respondent personally drew the cheque on his own bank account, he was personally liable regardless of whether the company was also named as an accused. Relying on its own precedents (P.J. Agro Tech and National Small Industries Corporation), the Court held no specific averment of the respondent being "in charge of" the company was needed given his position as Managing Director/proprietor. The Court allowed the appeal, set aside both lower court orders, convicted the respondent, sentenced him to five months' simple imprisonment, and directed him to pay compensation of twice the cheque amount (Rs. 1,48,400) with 9% simple interest, with a further six months' imprisonment in default of payment.

Lesson Learnt

A person who personally signs and issues a cheque, even to settle a company's or project's liability, can be held personally criminally liable under Section 138 of the NI Act if it bounces; "the company should have been sued, not me" is not a valid defence when you are the one who drew the cheque.

Official source (sci.gov.in)View Judgment (PDF)

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