Dishonour of cheque under Section 138 of Negotiable Instruments Act creates a statutory offence in a matter of dishonour of cheques on grounds of insufficiency of funds in an account maintained by a person with a banker and that it exceeds the amount arranged to be paid. Generally, in criminal law, mens rea is an essential component of crime but dishonour of cheque is a criminal offence where there is no need to prove a mens rea.

The offence of cheque dishonour would be made out only if the dishonoured cheque is drawn by the drawer in favour of drawee for discharge of a legally enforceable debt or liability. Essentially, there is an element of civil liability between drawer and drawee of cheque but if ingredients of cheque dishonour are made out, it is a criminal offence to be tried in the manner provided under the statute.

Magistrate upon receipt of private complaint has a very important and responsible role to play. The Magistrate must scrutinize the complaint to examine if the allegations made in the complaint inter alia smack of an instinct of frivolous litigation as also to examine the complainant to elicit material that supports the case of the complainant. Undoubtedly, the issuance of process and putting a person to trial is a serious matter and the Magistrate, while exercising such power cannot afford to be mechanical or lackadaisical. The Magistrate must perform a proactive role so that frivolous litigation is stumped at the outset.

Once there is enough material before the trial court in the shape of complaint of facts and the documentary evidence appended therewith to put the accused on notice to face the trial, offence of cheque dishonour can be made out.
 

Appearing counsel: Mr. M. A. Qayoom