Clearing all controversy, the Supreme Court ruled that the jurisdiction of such cases have to be the location where the cheque bounced, meaning the bank of the person, who issued the cheque and not the bank location of the complainant
Prosecuting jurisdiction in a cheque bouncing case has been a highly contested issue since very long. The issue has revolved around the point of determination.
Where would someone file a case for cheque bouncing out of the following venues?
• Location of the bank of Complainant
• Location of bank of issuer
• Location of origin of legal notice
• Where the legal notice was received
In the Dasrath Rupsingh case, a three Judge Bench of the Supreme Court has finally laid the controversy to rest.
By and large, complaints pertaining to cheque bouncing are instituted where the bank of the complainant is. Before the Supreme Court decided the case of Harman Electronics, complainants used to file a large number of cases on the basis of the location of their attorney, not of any bank, who would send the legal notice for a cheque having bounced. The Court noted that the law of cheque bouncing was being misused rampantly. Complaints were filed in Delhi just because lawyers were issuing notices from there, even though the bank of the payer or the payee were outside Delhi.
The Supreme Court has effectively put an end to this harassment at the hands of the Drawee.
Last year, in the Nishant Aggarwal case, the Supreme Court again addressed the prosecuting jurisdiction aspect. A two Judges Bench of the Supreme Court held that the complaint under Section 138 can be filed at the jurisdiction where the bank of the Complainant is situated.
In the Dasrath Rupsingh case, the apex court has cleared the controversy once and for all. The Bench stated that the factor for determining jurisdiction has to be the location where the cheque bounced, meaning thereby, the bank of the person who issued the cheque and not at the place the intimation of dishonour reaches, i.e, bank of the complainant. The Bench further held that the offence under the section shall occur when the cheque is returned unpaid.
The Bench notes that the cheque bouncing law should not be allowed to become a tool for harassment. There had been cases where the complainant would deposit the cheque and/or issue a legal notice from a place that was totally unrelated to the transaction in question-- in a possibe attempt to harass the other party.
The Bench also safeguarded the interests of genuine creditors in such a scenario. A person/ company can insist that the payment shall be made through cheque in question, payable at a particular location convenient to the creditor.
It is also important to note that the remedy under the Negotiable Instruments Act is in addition to the provisions of the Indian Penal Code (IPC) and not as an alternative. Meaning that the case for cheque bouncing will be maintainable only where the bank of the drawee is, but if the creditor can demonstrate that various acts of the transaction took place in another jurisdiction, like his office/ residence, then he can maintain a separate action for fraud, cheating and forgery. Then there is also an option before the Complainant to institute a civil suit for recovery against the person who issued the dishonoured cheque.
Status of the pending cases:
After ruling that the proper jurisdiction to hold trial in a cheque bouncing case is where the bank of the alleged accused is situated, the Bench passed an order dealing with the currently pending cases.
In all those matters where the alleged accused has appeared after summoning and his evidence under Section 145 has commenced, those cases will remain where they are already pending. In all other matters where the evidence by examination under Section 145 has not begun, the case will be returned to the complainant to institute at the jurisdiction where the bank of the accused is situated.
Reading any judgement by Justice Vikramajit Sen is an excellent experience and this one is no different. However, in a separate judgement, Justice TS Thakur has also given elaborate findings regarding the confusionaround cheque bouncing matters.
(Dushyant K Mahant , is Founding Partner of Mahant & Mahant and Intellectual Property Lawyer. He did his Masters in IP Law from Brisbane. Does pro bono work as well. Mr Mahant is active on social media to exchange views and news about politics, law and common sense)
A wrongly convicted Brooklyn man will receive millions in compensation from New York City, but that doesn’t address the broader lack of consequences when prosecutors abuse their power.
The dollar figure was so large and the public statements of vindication and concession so harmonious, one might have been tempted to think the system had actually worked.
A wrongly convicted Brooklyn man had won his freedom when a federal judge called out a local prosecutor for misconduct. And then, this week, with the help of an able lawyer, the freed man won a $10 million settlement from New York City, gaining possible financial security for life.
But ProPublica's reporting over the last two years suggests that any such temptation to think the system worked in the case of Jabbar Collins should be resisted.
The system for identifying and punishing misconduct by prosecutors is badly broken, our reporting shows, and with the Collins case settling, a crucial channel for exposing systemic problems and ensuring they don't recur may close as well.
So many shortcomings spotlighted by the Collins case remain unresolved.
Michael Vecchione, the prosecutor who gained a murder conviction against Collins in the 1990s and who was later accused of having committed an array of misconduct in the case, has to date faced no sanction.
And history suggests he won't. He even managed to cash out a couple hundred days of vacation as he quietly left the Brooklyn district attorney's office last year.
The taxpayers who paid for those vacation days are now on the hook for $10 million more, footing the bill for Collins' wrongful conviction.
The lack of consequences for Vecchione -- who was accused by Collins and his lawyer of intimidating witnesses, suborning perjury and lying about it all for years while Collins sat in prison -- get at larger problems with the system of prosecutorial oversight.
Two federal judges ultimately came to damning conclusions about Vecchione's conduct.
They upbraided him in open court. But there's no evidence they reported him to the state disciplinary committees appointed to investigate complaints of attorney misconduct.
The fact that it is not clear whether any state panel charged with policing attorneys has or will take up Vecchione's history underscores what many have complained about for years: The state's disciplinary system operates almost entirely in secret. Its rare disciplining of prosecutors, then, often remains unknown to the public, including the men and women later facing those prosecutors in court.
The system offers the innocent and the damaged only one meaningful recourse for exposing prosecutorial misconduct: a civil lawsuit. But such suits require years of expensive effort, and, of course, are only even theoretically available to those who have managed to win their freedom.
The Collins case, in this respect, highlights yet one more disturbing component of the way cases of misconduct are handled.
In a statement announcing the $10 million settlement, lawyers for New York City called it only fair. The Brooklyn district attorney's office, the city's lawyers pointed out, had admitted as far back as 2010 that Collins' constitutional rights to a fair trial had been violated.
One might ask, then, why the city fought so vigorously over the subsequent years, deriding Collins' lawyer for trying the case in the press, suggesting Collins could still be guilty and denying Vecchione had done anything improper.
The city, of course, has many interests in defending itself in such lawsuits. Still, it effectively acknowledged this week that it had spent years of effort and untold taxpayer dollars on a case in which it conceded Collins had an undisputed legal claim.
All of this, ProPublica's reporting has shown, is hardly isolated. Our reporting found examples like Collins in other boroughs in the city. And a growing body of reporting by other news organizations has demonstrated that it goes on in all corners of the country.
This is, one might say, how the system works. Or doesn't. The Collins settlement ratifies nothing but how broken it remains.
Dena Bank officials allowed Rs256.69 crore transfer through overdraft facility, while OBC transferred Rs180 crore received from JNPT as bulk deposit to one Padmavati International
Shares of Dena Bank and Oriental Bank of Commerce (OBC) fall on Wednesday following a news report about Rs436.7 crore fraud in their branches. Dena Bank has suspended its 'erring' branch manager and transferred some staff members. OBC, on the other hand said it has initiated departmental action against erring officials.
Dena Bank closed Wednesday 5% down at Rs60.1, while OBC ended the day 6.5% down at Rs264.5 on the BSE. The 30-share Sensex closed the day marginally down at 26,314.
In a regulatory filing, Dena Bank said, "Malabar Hill Branch of the Bank received bulk term deposits from various entities and government organizations between 30 January 2014 and 5 May 2014. Subsequently, term deposits amounting to Rs256.69 crore were pledged to the Bank by the same signatories to obtain overdraft facilities of Rs223.25 crore. The funds were surreptitiously transferred out of the Bank by creating fake overdraft facility, resulting in a fraud on the Bank and the concerned entities, Government organizations."
OBC, in its regulatory filing said, "Surreptitious transfer of funds from our Malwani, Mumbai Branch: Jawaharlal Nehru Port Trust (JNPT) had placed funds aggregating Rs180 crore with the Bank initially for the purpose of term deposit in two tranches in February 2014. These funds were surreptitiously transferred out of the Bank to Padmavati International upon instructions of the same signatory/constituent. Padmavati International remitted the amount to seven banks and 12 clients. Later, when JNPT complained about non-receipt of term deposit receipt, the Bank replied that the funds have been transferred on their instructions only."
"JNPT has filed a case with Central Bureau of Investigation (CBI) and the matter is under investigation. Out of the above, Rs110.12 crore lying with other banks has been seized under instructions of CBI, Rs64.31 crore is untraced as on date and the balance Rs5.57 crore, which was lying with us has been remitted back to JNPT," OBC said in the filing.
The Finance ministry has taken note of these instances and has ordered a forensic audit of the two public sector banks, say reports.