Inherently this branch of the law ought to lend itself to swift disposals and ideally a decisionordinarily should be arrived at within a month of a complaint being filed. There will obviously be exceptions where fraud, forgery or theft in respect of a cheque is alleged. But those genre of cases are easily identifiable and can be separated from the majority of actions u/s.138. And even the exceptional cases are not difficult of swift solution by a competent judicial officer albeit in a longer trial.

Although sec. 138 on a literal reading appears to be attracted only when a cheque is dishonoured on account of insufficient funds or the cheque amount exceeds the funds arranged for with the bank, courts have expanded the scope of this section to apply to situations where the dishonour is for reasons of "refer to drawer", or where payment is stopped by drawer or an account closed after issuance of cheque.

The need to depart from a narrow and pedantic approach in interpreting the law is noteworthy. If commerce is to flourish, cheques ought not to be allowed to bounce with impunity, and if they do, thedrawer must be brought to quick criminal and civil justice. Recognising this imperative parliament has enacted the new provisions to the Negotiable Instruments Act and the courts are every willing to supply any drafting omission. Lord Denning in Seaford Court/Estates v. Asher (1949 2 All ER 155) observed:-

"In the absence of it, (clarity of language) when a defect appears, a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of parliament, and he must do this not only from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give "force and life" to the intention of the legislature. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases".

The Supreme Court in the case of Electronics Trade & Technology Development Corpn. (Suspra) struck a somewhat discordant notewhilst going out of it's ways to observe that sec.138 of the Negotiable Instruments Act is not attracted if the payee being put to notice not to deposit a cheque issued in his favour nonetheless presents such cheque for encashment and finds that it is dishsonoured. It was really concerned with a situation where the drawer after issuing a cheque instructed the bank to stop payment and when the cheque was dishonoured contended that Sec.138 was not attracted because it was not a case of dishonour for insufficiency of funds. This contention was rejected by the SC rightly holding that the provisions of Sec.138 could not be whittled down by issuing a stop payment order to the drawer's bank after a cheque had been issued by the drawer in discharge of his liability; but it needlessly added that instructions to the pay not to deposit a cheque issued to him before the actually presented it would have the effect of avoiding the rigors of sec.138.

The most recent pronouncement on the subject by the Supreme Court in thecase of M/s.Modi Cements Ltd. (Suprae) puts Sec.138 back on its feet and has overruled it's earlier observations in Electronic Trade & Technology which held that sec. 138 would not be attracted if the drawer was, prior to presenting the cheque, put to notice by the drawer not to do so.

The Supreme Court in Modi Cements said that a drawer who issues a post-dated cheque and at the time of its issuance has no balance in his account, commits no offence if when the cheque is presented arranges for such payment with the bank. The offence u/s.138 is committed only when the cheque is dishonoured (and not when it is issued). Since it is the "dishonour" which constitutes the offence then it stands to reason that more than one complaint may be filed in respect of dishonour of cheques issued in discharge of the same liability.

The law in this respect has been given substance and meaning by the various judicial pronouncements and now stands fairly streamlined. The position therefore is that if a cheque is dishonouredfor a reason that reflects an intention on the part of the drawer not to honour his commitment then he is an offender u/s.138. The holder of such instrument must of course bring an action within the time constraints provided and this is crucial. The holder must within fifteen days of receiving intimation of dishonour puts the drawer to notice of the same and give him fifteen days time to make good his commitment. If the liability is not discharged within that time then an action by way of a complaint before the concerned magistrate must be filed within one month of the failure by the drawer to make payment.

The time frame provided by the law to initiate action must be strictly adhered to if the complainant is to bring his case within the purview of section 138.

Complaints lie in courts for years before a trial begins and the actual trial may be drawn out for several months. Of course, all this is a manifestation of a more serious malady that ails the Indian legal and judicial system, but one would imaginethat this excellent and radical enactment so capable of being enforced effectively with minimal judicials effort could have been singled out for special treatment.

If dishonour of cheques were swiftly dealt with, commerce certainly would bloom. But an equally great beneficiary would be the institution of the judiciary. Public confidence in courts is perhaps at an alls time low today and to revive it by a complete overhaul through legislative and executive measures is but a distant dream.