NEGOTIABLE INSTRUMENTS ACT, 1881

Local extent, saving of usage relating to hundis, etc., commencement: It extends1 to 2 [the whole India 3[* * *]]; but nothing herein contained affects the 4 [Indian Paper Currency Act, 1871 (3 of 1871)], section 21, or affects any local usage relating to any instrument in an oriental language:

PROVIDED that such usages may be excluded by any words in the body of the instrument, which indicate an intention that the legal relations of the parties thereto shall be governed by this Act; and it shall come into force on the first day of March, 1882.

1. The Act has been extended to Goa, Daman, and Diu by Regulation 12 of 1962, and to Dadra and Nagar Haveli w.e.f. 1-7-1965 by Regulation 6 of 1963

2. Substituted by the AO 1950 for “all the Provinces of India”.

3. Words “except the State of Jammu and Kashmir” omitted by Act 62 of 1956.

4. See now the Reserve Bank of India Act, 1934 (2 of 1934).

2. Repeal of enactments. -[Rep. by the Amending Act, 1891 (12 of 1891), sec. 2 and Sch., part].

3. Interpretation clause. -In this Act- 1[* * *]

“Banker”: 2[“banker” includes any person acting as a banker and any post office savings bank]. 3[* * *]

1. Definition of “India” omitted by Act 62 of 1956.

2. Substituted by Act 37 of 1955, for the definition of word “banker” w.e.f. 1-4-1956.

3. Definition of “notary public” omitted by Act 53 of 1952 w.e.f. 14-2-1956.

CHAPTER-II

OF NOTES, BILLS AND CHEQUES

4. “Promissory note”. -A “promissory note” is an instrument in writing (not being a bank-note or a currency-note) containing an unconditional undertaking signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument.

Illustrations

A sign instrument in the following terms:

(a) “I promise to pay B on order Rs. 500”.

(b) “I acknowledge myself to be indebted to B in Rs. 1, 000, to be paid on demand, for value received.”

(d) “I promise to pay B Rs. 500 and all other sums which shall be due to him.”

(e) I promise to pay B Rs. 500 first deducting there out any money which he may owe me.”

(f) “I promise to pay B Rs. 500 seven days after my marriage with C.”

(g) “I promise to pay B Rs. 500 on D's death, provided D leaves me enough to pay that sum,”

(h) “I promise to pay B Rs. 500 and to deliver to him my black horse on lst January next.”

The instruments respectively marked (a) and (b) are promissory notes. The instruments respectively marked (c), (d), (e), (f), (g) and (h) are not promissory notes.

5. “Bill of exchange”. -A “bill of exchange” is an instrument in writing containing an unconditional order signed by the marker, 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.

A promise or order to pay is not “conditional' within the meaning of this section and section 4, by reason of the time for payment of the amount or any installment thereof being expressed to be on the lapse of a certain period after the occurrence of a specified event which, according to the ordinary expectation of mankind, is certain to happen, although the time of its happening may be uncertain.

The sum payable may be “certain”, within the meaning of this section and section 4, although it includes future interest or is payable at an indicated rate of exchange, or is according to the course of exchange, and although the instrument provides that, on default of payment of an installment, the balance unpaid shall become due.

The person to whom it is clear that the direction is given or that payment is to be made may be “certain person”, within the meaning of this section and section 4, although he is misnamed or designated by description only.

6. “Cheque”. -A “Cheque” is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand.

7. “Drawer', “drawee”. -The maker of a bill of exchange or Cheque is called the “drawer”; the person thereby directed to pay is called the “Drawee”.

“Drawee in case of need “: When the bill or in any endorsement thereon the name of any person is given in addition to the drawee to be resorted to in case of need such person is called a “drawee in case of need”.

“Acceptor”: After the drawee of a bill has signed his assent upon the bill, or, if there are more parts thereof than one, upon one of such part, and delivered the same, or given notice of such signing to the holder or to some person on his behalf, he is called the “acceptor”.

“Acceptor for honour”: 1[When a bill of exchange has been noted or protested for non-acceptance or for better security], and any person accepts it supra protest for honour of the drawer or of any one of the endorser, such person is called an “acceptor for honour”.

“Payee”: The person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid, is called the “payee”.

1. Substituted by Act 2 of 1885, for words “When acceptance is refused and the bill is protested form on-acceptance”.

8. “Holder”. -The “holder” of a promissory note, bill of exchange or Cheque means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto.

Where the note, bill or Cheque is lost or destroyed, its holder is the person so entitled it the time of such loss or destruction.

9. “Holder in due course”. -”Holder in due course” means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or endorsee thereof, if' [payable to order], before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title.

10. “Payment in due course”. -”Payment in due course” means payment in accordance with the apparent tenor of the instrument in good faith and without negligence to any person in possession thereof under circumstances, which do not afford a reasonable ground for believing, that lie is not entitled to receive payment of the amount therein mentioned.

11. 'Inland instrument”. -A promissory note, bill of exchange or cheque drawn or made in 1 [India] and made payable in, or drawn upon any person residential in 1 [India] shall be deemed to be an inland instrument.

1. Substituted by Act 36 of l957, forwards” a State”.

12. 'Foreign instrument”. -Any such instrument not so drawn, made or made payable shall be deemed to be a foreign instrument.

13. Negotiable instrument”. -

1[(l) A “negotiable instrument” means a promissory note, bill of exchange or cheque payable either to order or to bearer.

Explanation I: A promissory note, bill of exchange or cheque is payable to order which is expressed to be so payable or which is expressed to be payable to a

Particular person, and does not contain words prohibiting transfer or indicating an intention that it shall not be transferable.

Exploitation 2: A promissory note, bill of exchange or cheque is payable to bearer which is expressed to be so payable or on which the only or last endorsement is an endorsement in blank.

Explanation 3: Where a promissory note, bill of exchange or cheque, either originally or by endorsement, is expressed to be payable to the order of a specified person, and not to him or his order, it is nevertheless payable to him or his order at his option.]

2[2) A negotiable instrument may be made payable to two or more payees jointly, or it may be made payable in the alternative to one of two, or one or some of several payees.]

1. Substituted by Act 8 of 1919

2. Added by Act 5 of 1914.

14. Negotiation. -When a promissory note, bill of exchange or cheque is transferred to any person, so as to constitute the person the holder thereof, the instrument is said to be negotiated.

15. Endorsement. -When the maker or holder of a negotiable instrument signs the same, otherwise than as such maker, for the purpose of negotiation on the back or face thereof or on a slip of paper annexed thereto, or so signs for the same purpose a stamped paper intended to be completed as a negotiable instrument, he is said to endorse the same, and is called the “endorser”.

16. Endorsement “in blank” and in full”-”endorsee. -

1[(1) If the endorser signs his name only, the endorsement is said to be “in blank”, and if he adds a direction to pay the amount mentioned in the instrument to, or to the order of, a specified person, the endorsement is said to be “in full”, and the person so specified is called the “endorsee” of the instrument.

2(2) The provisions of this Act relating to a payee shall apply with the necessary modifications to an endorsee.

1. Section 16 renumbered as sub-s. (1) and sub-s. (2) added by Act 5 of 1914.

2. Substituted by Act 3 of 1951 for words “the States”.

17. Ambiguous instruments. -Where an instrument may be construed either as a promissory note or bill of exchange, the holder may at his election treat it as either and the instrument shall be thenceforward treated accordingly.

18. Where amount is stated differently in figures and words. -If the amount undertaken or ordered to be paid is stated differently in figures and in words, the amount stated in words shall be the amount undertaken or ordered to be paid.

19. Instruments payable on demand. -A promissory note or bill of exchange, in which no time for payment is specified, and a cheque, are payable on demand

20. Inchoate stamped instruments. -Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in 1[India], and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.

1. Substituted by Act 3 of 1951 for words “the States”.

21. “At sight”, On presentment', “After sight”. -In a promissory note or bill of exchange the expressions “at sight” and “on presentment” means on demand. The expression “after sight” means, in a promissory note, after presentment for sight, and, in a bill of exchange after acceptance, or noting for non-acceptance, or protest for non-acceptance.

22. “Maturity”. -The maturity of a promissory note or bill of exchange is the date at which it falls due.

Days of grace: Every promissory note or bill of exchange which is not expressed to be payable on demand, at sight or on presentment is at maturity on the third day after the day on which it is expressed to be payable.

23. Calculating maturity of bill or note payable so many months after date or sight: - In calculating the date at which a promissory note or bill of exchange, made payable at stated number of months after date or after sight, or after a certain event, is at maturity, the period stated shall be held to terminate on the day of months, which corresponds with the day on which the instrument is dated, or presented for acceptance or sight, or noted for non-acceptance, or protested for non-acceptance, or the event happens or, where the instrument is a bill of exchange made payable a stated number of months after sight and has been accepted for honour, with the day on which it was so accepted. If the month in which the period would terminate has no corresponding day, the period shall be held to terminate on the last day of such month.

Illustrations

(a) A negotiable instrument dated 29th January, 1878, is made payable at one month after date. : 2 instrument is at maturity on the third day after the 28th February, 878.

(b) A negotiable instrument, dated 30th August, 1878, is made payable three months after date. The instrument is at maturity on the 3rd December, 1878.

(c) A promissory note or bill of exchange, dated 31^st August, 1878, is made payable three months after date. The instrument is at maturity on the 3rd December, 1878.

24. Calculating maturity of bill or note payable so many days after date or sight: -In calculating the date at which a promissory payable a certain number of days after date or after sight or after a certain event is at maturity, the day of the date, or of presentment for acceptance or sight, or of protest for non-acceptance, or on which the event happens, shall be excluded.

25. When day of maturity is a holiday: -When the day on which a promissory note or bill of exchange is at maturity is a public holiday, the instrument shall be deemed to be due on the next preceding business day.

Explanation: The Expression “Public Holiday” includes Sunday” 1[***] and any other day declared by the 2[Central Government], by notification in the Official Gazette, to be a public holiday.

1. Words “New-Year's day, Christmas day: if either of such days falls on a Sunday, the next following Monday; Good Friday;” omitted by Act 37 of 1955 w.e.f. 1-4-1956.

2. Substituted by the AO 1937,for “LG”.

CHAPTER-III

PARTIES TO NOTES, BILLS AND CHEQUES

26. Capacity to make, etc., promissory notes, etc. -Every person capable of contracting, according to the law to which he is subject, may bind himself and be bound by the making, drawing acceptance, endorsement, delivery and negotiation of a promissory note, bill of exchange or cheque.

Minor: A minor may draw, endorse, deliver and negotiate such instruments so as to bind all parties except himself.

Nothing herein contained shall be deemed to empower a corporation to make, endorse or accept such instruments except in cases in which, under the law for the time being in force, they are so empowered.

27. Agency: -Every person capable of binding himself or of being bound, as mentioned in section 26, may so bind himself or be bound by a duly authorised agent acting in his name.

A general authority to transact business and to receive and discharge debts does not confer upon an agent the power of accepting or endorsing bills of exchange so as to bind his principal.

An authority to draw bills of exchange does not of itself impart an authority to endorse.

28. Liability of agent signing: -An agent who signs his name to a promissory note, bill of exchange or cheque without indicating thereon that the signs as agent, or that he does not intend thereby to incur personal responsibility, is liable personally on the instrument, except to those who induced him to sign upon the belief that the principal only would be held liable.

29. Liability of legal representative signing: -A legal representative of a deceased person who signs his name to a promissory note, bill of exchange or cheque is liable personally thereon unless he expressly limits his liability to the extent of the assets received by him as such..

30. Liability of drawer. -The drawer of a bill of exchange or cheque is bound in case of dishonour by the drawee or acceptor thereof, to compensate the holder, provided due notice of dishonour has been given to, or received by, the drawer as hereinafter provided.

31. Liability of drawee of cheque. -The drawee of a cheque having sufficient funds of the drawer in his hands properly applicable to the payment of such cheque must pay the cheque when duly required so to do, and, in default of such payment, must compensate the drawer for any loss or damage caused by such default.

32. Liability of maker of note and acceptor of bill. -In the absence of a contract to the contrary, the maker of a promissory note and the acceptor before maturity of a bill of exchange are bound to pay the amount thereof at maturity according to the apparent tenor of the note or acceptance respectively, and the acceptor of a bill of exchange at or after maturity is bound to pay the amount thereof to the holder on demand.

In default of such payment as aforesaid, such maker or acceptor is bound to compensate any party to the note or bill for any loss or damage sustained by him and caused by such default.

33. Only drawee can be acceptor except in need or for honour. -No person except the drawee of a bill of exchange, or all or some of several drawees, or a person named therein as a drawee in case of need, or an acceptor for honour, can bind himself by an acceptance.

34. Acceptance by several drawees not partners. -Where there are several drawees of a bill of exchange who are not partners, each of them can accept it for himself, but none of them can accept it for another without his authority.

35. Liability of endorser. -In the absence of a contract to the contrary, whoever endorses and delivers a negotiable instrument before maturity, without, in such endorsement, expressly excluding or making conditional his own liability, is bound thereby to every subsequent holder, in case of dishonour by the drawee, acceptor or maker, to compensate such holder for any loss or damage caused to him by such dishonour, provided due notice of dishonour has been given to, or received by, such endorser as hereinafter provided.

Every endorser after dishonour is liable as upon an instrument payable on demand.

36. Liability of prior parties to holder in due course. -Every prior party to a negotiable instrument is liable thereon to a holder in due course until the instrument is duly satisfied.

37. Maker, drawer, and acceptor principals. -The maker of a promissory note or cheque, the drawer of a bill of exchange until acceptance, and the acceptor are, in the absence of a contract to the contrary, respectively liable thereon as principal debtors, and the other parties thereto are liable thereon as sureties for the maker, drawer or acceptor, as the case may be.

38. Prior Party a principal in respect of each subsequent party: -As between the parties so liable as sureties, each prior party is, in the absence of a contract to the contrary, also liable thereon as a principal debtor in respect of each subsequent party.

Illustration

A draws a bill payable to his own order on B, who accepts, A afterwards endorses the bill to C, C to D to E. As between E and B, B is the principal debtor, and A, C and D are his sureties. As between E and A., A is the principal debtor, and C and D are his sureties. As between E and C, C is the principal debtor and D is his surety.

39. Surety ship. -When the holder of an accepted bill of exchange enters into any contract with the acceptor which, under section 134 or 135 or the Indian Contract Act, 1872 (9 of 1872), would discharge the other parties, the holder may expressly reserve his right to charge the other parties, and in such case they are not discharged.

40. Discharge of endorser's liability: - Where the holder of a negotiable instrument, without the consent of the endorser, destroys or impairs the endorser's remedy against a prior party, the endorser is discharged from liability to the holder to the same extent as if the instrument had been paid at maturity.

Illustration

A is the holder of a bill of exchange made payable to the order of B, which contains the following endorsements in blank-

First endorsement, “B “.

Second endorsement, “Peter Williams”.

Third endorsement, “Wright & Co.”.

Fourth endorsement “John Rozario”.

This bill A puts in suit against John Rozario and strikes out, without John Rosario’s consent, the endorsements by Peter Williams and Wright & Co. A is not entitled to recover any thing from John Rozario.

41. Accept or bound, although endorsement forged: -An acceptor of a bill of exchange already endorsed is not relieved from liability by reason that such endorsement is forged, if he know or had- reason to believe the endorsement to be forged when he accepted the bill.

42. Acceptance of bill drawn in fictitious name. -An acceptor of a bill of exchange drawn in a fictitious name and payable to the drawer's order is not, by reason that such name is fictitious, relieved from liability to any holder in due course claiming under an endorsement by the same hand as the drawer's signature, and purporting to be made by the drawer.

43. Negotiable instrument made, etc. without consideration. -A negotiable instrument made, drawn, accepted, endorsed, or transferred without consideration, or for a consideration which fails, creates no obligation of payment between the parties to the transaction. But if any such a party has transferred the instrument with or without endorsement to a holder for a consideration, such holder, and every subsequent holder deriving title from him, may recover the amount due on such instrument from the transferor for consideration or any prior party thereto.

Exception I: No party for whose accommodation a negotiable instrument has been made, drawn, accepted or endorsed can, if he has paid the amount thereof, recover thereon such amount from any person who became a party to such instrument for his accommodation.

Exception II: - No party to the instrument who has induced any other party to make draw, accept, endorse or transfer the same to him for a consideration which he has failed to pay or perform in full shall recover therein an amount exceeding the value of the consideration (if any) which he has actually paid or performed.

44. Partial absence or failure of money-consideration: -When the consideration for which a person signed a promissory note, bill of exchange or cheque consisted of money and was originally absent in part, the sum which a holder standing in immediate relation with such signer is entitled to receive from him is proportionally reduced.

Explanation: The drawer of a bill of exchange stands immediate relation with the acceptor. The maker of a promissory note, bill of exchange or cheque stands in immediate relation with the payee, and the endorser with his endorsee. Other signers may by agreement stand in immediate relation with a holder.

Illustration

A draws a bill on B for Rs. 500 payable to the order of A. B accepts the bill, but subsequently dishonours it by non-payment. A sues B on the bill. B proves that it was accepted for value as to Rs. 400, and as an accommodation to the plaintiff as to the residue. A can only recover Rs. 400.

45. Partial failure of consideration not consisting of money: -Where a part of the consideration for which a person signed a promissory note, bill of exchange or cheque, though not consisting of money, is ascertainable in money without collateral enquiry, and there has been a failure of that party, the sum which a holder standing in immediate relation with such signer is entitled to receive from him is proportionally reduced.

1[45A. Holder's right to duplicate of lost bill. -Where a bill of exchange has been lost before it is overdue, the person who was the holder of it may apply to the drawer to give him another bill of the same tenor, giving security to the drawer, if required, to indemnify him against all persons whatever in case the bill alleged to have been lost shall be found again.

If the drawer on request as aforesaid refuses to give such duplicate bill, he may be compelled to do so.

1 Inserted by Act 2 of 1885.

CHAPTER-IV

OF NEGOTIATION

46. Delivery. -The making, acceptance or endorsement of a promissory note, bill of exchange or cheque is completed by delivery, actual or constructive.

As between parties standing in immediate relation, delivery to be effectual must be made by the party making, accepting or endorsing the instrument, or by a person authorised by him in that behalf.

As between such parties and any holder of the instrument other than a holder in due course, it may be shown that the instrument was delivered conditionally or for a special purpose only, and not for the purpose of transferring absolutely the property therein.

A promissory note, bill of exchange or cheque payable to bearer is negotiable by the delivery thereof.

A promissory note, bill of exchange or cheque payable to order is negotiable by the holder by endorsement and delivery thereof.

47. Negotiation by delivery. -Subject to the provisions of section 58, a promissory note, bill of exchange or cheque payable to bearer is negotiable by delivery thereof.

Exception: A promissory note, bill of exchange or cheque delivered on condition that it is not to take effect except in a certain event is not negotiable (except in the hands of a holder for value without notice of the condition) unless such event happens.

Illustration

(a) A, the holder of a negotiable instrument payable to bearer, delivers it to B's agent to keep for B. The instrument has been negotiated.

(b) A, the holder of a negotiable instrument payable to bearer, which is in the hands of A's banker, who is at the time the banker of B, directs, the banker to transfer the instrument to B's credit in the banker's account with B. The banker does so, and accordingly now possesses the instrument as B's agent. The instrument has been negotiated, and B has become the holder of it.

48. Negotiation by endorsements. -Subject to the provisions of section 58, a promissory note, bill of exchange or cheque l[payable to order], is negotiable by the holder by endorsement and delivery thereof.

1. Substituted by Act 8 of 1919 for words “payable to the order of a specified person, or to a specified person on order”.

49. Conversion of endorsement in blank into endorsement in full. -The holder of a negotiable instrument endorsed in bank may, without signing his own name, by writing above the endorser's signature a direction to pay to any other person as endorsee, convert the endorsement in blank into an endorsement in full; and the holder does not thereby incur the responsibility of an endorser.

50. Effect of endorsement. -The endorsement of a negotiable instrument followed by delivery transfers to the endorsee the property therein with the right of further negotiation, but the endorsement may by express words, restrict or exclude such right, or may merely constitute the endorsee an agent to endorse the instrument, or to receive its contents for the endorser, or for some other specified person.

Illustrations

B signs the following endorsements on different negotiable instruments payable to bearer

(a) “Pay the contents to C only”.

(b) “Pay C for my use”.

(d) “The within must be credited to C”.

These endorsements exclude the right of further negotiation by C.

(e) “Pay C”.

(f) “Pay C value in account with the Original Bank”.

(g) “Pay the contents to C, bring part of the consideration in a certain deed of assignment executed by C to endorser and others”.

51. Who may negotiate. -Every sole maker, drawer, payee or endorsee, or all of several joint makers, drawers, payees or endorsees, of a negotiable instrument may, if the negotiability of such instrument has not been restricted or excluded as mentioned in section 50, endorse and negotiate the same.

Explanation: Nothing in this section enables a maker or drawer to endorse or negotiate an instrument, unless he is in lawful possession or is holder thereof, or enables a payee or endorsee to endorse or negotiate an instrument, unless he is holder thereof.

Illustration

A bill is drawn payable to A or order. A endorses it to B, the endorsement not containing the words “or order” or any equivalent words. B may negotiate the instrument.

52. Endorser who excludes his own liability or make it conditional. -The endorser of a negotiable instrument may, by express words in the endorsement, exclude his own liability thereon, or make such liability or the right of the endorsee to receive the amount due thereon depend upon the happening of a specified event, although such event may never happen.

Where an endorser so excludes his liability and afterwards becomes the holder of the instrument all intermediates endorsers are liable to him.

Illustration

(a) The endorser of a negotiable instrument signs his name, adding the words “without recourse”.

Upon this inducement, he incurs no liability.

(b) A is the payee and holder of a negotiable instrument. Excluding personal liability by an endorsement, “without recourse”, he transfers the instrument to B, and B endorses it to C, who endorses it to A. A is not only reinstated in his former rights, but has the rights of an endorsee against B and C.

53. Holder deriving title from holder in due course. -A holder of a negotiable instrument who derives title from a holder in due course has the rights thereon of that holder in due course.

54. Instrument endorsed in blank. -Subject to the provisions hereinafter contained as to crossed cheques, a negotiable instrument endorsed in blank is payable to the bearer thereof even although originally payable to order.

55. Conversion of endorsement in blank into endorsement in full. -If a negotiable instrument, after having been endorsed in bank, is endorsed in full, the amount of it cannot be claimed from the endorser in full, except by the person to whom it has been endorsed in full, or by one who derives title through such person.

56. Endorsement for part of sum due. -No writing on a negotiable instrument is valid for the purpose of negotiation if such writing purports to transfer only a part of the amount appearing to be due on the instrument; but where such amount has been partly paid a note to that effect may be endorsed on the instrument, which, may then be negotiated for the balance.

57. Legal representative cannot by delivery only negotiate instrument endorsed by deceased: -The legal representative of a deceased person cannot negotiate by delivery only a promissory note, bill of exchange or cheque payable to order and endorsed by the deceased but not delivered.

58. Instrument obtained by unlawful means or for unlawful consideration. -When a negotiable instrument has been lost, or has been obtained from any maker, acceptor or holder thereof by means of an offence or fraud, or for an unlawful consideration, no possessor or endorsee who claims through the person who found or so obtained the instrument is entitled to receive the amount due thereon from such maker, acceptor or holder, or from any party prior to such holder, unless such possessor or endorsee is, or some person through whom he claims was, a holder thereof in due course.

59. Instrument acquired after dishonour or when overdue The holder of a negotiable instrument, who has acquired it after dishonour, whether by non-acceptance or non-payment, with notice thereof, or after maturity, has only, as against the other parties, the rights thereon of his transferor.

Accommodation note or bill: Provided that any person who, in good faith and for consideration, becomes the holder, after maturity, of a promissory note or bill of exchange made, drawn or accepted without consideration, for the purpose of enabling some party thereto to raise money thereon, may recover the amount of the note or bill from any prior party.

Illustration

The acceptor of a bill of exchange, when he accepted it, deposited with the drawer certain goods as a collateral security for the payment of the bill, with power to the drawer to sell the goods and apply the proceeds in discharge of the bill if it were not paid at maturity. The bill not having been paid in maturity, the drawer sold the goods and retained the proceeds, but endorsed the bill to A.. A's title is subject to the same objection as the drawer's title.

60. Instrument negotiable till payment or satisfaction: -A negotiable instrument may be negotiated (except by the marker, drawee or acceptor at or after, maturity, until payment or satisfaction thereof by the marker, a drawee or accepter at or after maturity, but after such payment or satisfaction.

CHAPTER V

OF PRESENTMENT

61. Presentment for acceptance. -A bill of exchange payable after sight must, if no time or place is specified therein for presentment, be presented to the drawee thereof for acceptance, if he can, after reasonable search, be found, by a person entitled to demand acceptance, within a reasonable time after it is drawn, and in business hours on a business day, in default of such presentment, on party thereto is liable thereon to the person making such default.

If the bill is directed to drawee at a particular place, it must be presented at that place, and if at the due date for presentment he cannot, after reasonable search, be found thereon, the bill is dishonoured.

l[When authorized by agreement or usage, a presentment through the post office by means of a registered letter is sufficient.]

1. Added by Act 2 of 1885.

62. Presentment of promissory note for sight. -A promissory note, payable at a certain period after sight must be presented to the maker thereof for sight (if he can after reasonable search be found) by a person entitled to demand payment, within a reasonable time after it is made and in business hours on a business day. In default of such presentment, no party thereto is liable thereon to the person making such default.

63. Drawee's time for deliberation. -The holder must, if so required by the drawee of a bill of exchange presented to him for acceptance, allow the drawee 1[forty-eight] hours (exclusive of public holidays) to consider whether he will accept it.

1. Substituted by Act l2 of l921 for “twenty-four”.

64. Presentment for payment. -Promissory notes, bill of exchange and cheques must be presented for payment to the maker, acceptor or drawee thereof respectively, by or on behalf or the holder as hereinafter provided. In default of such presentment, the other parties thereto are not liable thereon to such holder.

l[Where authorized by agreement or usage, a presentment through the post office by means of a registered letter is sufficient.]

Exception: Where a promissory note is payable on demand and is not payable at a specified place, no presentment is necessary in order to charge the maker thereof.

1. Inserted by Act 6 of 1897

65. Presentment for payment must be made during the usual hours of business and, if at a banker's, within banking hours

66. Presentment for payment of instrument payable after date or sight: -A promissory note or bill of exchange, made payable at a specified period after date or sight thereof, must be presented for payment at maturity.

67. Presentment for payment of promissory note payable by instalments. -A promissory note payable by instalments must be presented for payment on the third day after the date fixed for payment of each installment; and non-payment on such presentment has the same effect as non-payment of a note at maturity.

68. Presentment for payment of instrument payable at specified place and not elsewhere: A promissory note, bill of exchange or cheque made, drawn or accepted payable at a specified place and not elsewhere must, in order to charge any party thereto, be presented for payment at that place.

69. Instrument payable at specified place. -A promissory note or bill of exchange made, drawn or accepted payable at a specified place must, in order to charge the maker or drawer thereof, be presented for payment at the place.

70. Presentment where no exclusive place specified: -A promissory note or bill of exchange, not made payable as mentioned in sections 68 and 69, must be presented for payment at the place of business (if any) or at the usual residence, of the maker, drawee or acceptor thereof, as the case may be.

71. Presentment when maker, etc, has no known place of business or residence: -If the maker, drawee, or acceptor of a negotiable instrument has no known place of business or fixed residence, and no place is specified in the instrument for presentment for acceptance or payment such presentment may be made to him in person wherever he can be found.

72. Presentment of cheque to charge drawer. -1[Subject to the provisions of section 84] a cheque must, in order to charge the drawer, be presented at the bank on which it is drawn before the relation between the drawer and his banker has been altered to the prejudice of the drawer.

1 Inserted by Act 6 of 1897.

73. Presentment of cheque to charge any other person: -A cheque must, in order to charge any person except the drawer, be presented within a reasonable time after delivery thereof by such person.

74. Presentment of instrument payable at demand: -Subject to the provisions of section 31, a negotiable instrument payable on demand must be presented for payment within a reasonable time after the holder receives it

75. Presentment by or to agent, representative of deceased, or assignee of insolvent. -Presentment for acceptance or payment may be made to the duly authorized agent of the drawee, maker or acceptor, as the case may be, or, where the drawee, maker or acceptor has died, to his legal representative, or, where he has been declared an insolvent, to his assignee.

1[75A. Excuse for delay in presentment for acceptance or payment: -Delay in presentment 2 [for acceptance of payment] is excused if the delay is caused by circumstances beyond the control of the holder, and not imputable to his default, misconduct or negligence. When the cause of the delay ceases to operate, presentment must be made within a reasonable time.]

1. Inserted by Act 25 of 1920.

2. Inserted by Act 12 of 1921.

76. When presentment unnecessary. -No presentment for payment is necessary, and the instrument is dishonoured at the due date for presentment, in any of the following cases: -

(a) If the marker, drawee or acceptor intentionally prevents the presentment of the instrument, or

If the instrument being payable at his place of business, he closes such place on a business hours, or

If the instrument being payable at some other specified place, neither he nor nay person authorised to pay it attends at such place during the usual business hours, or

If the instrument not being payable at any specified place, he cannot after due search be found;

(b) As against any party sought to be charged therewith, if he has engaged to pay notwithstanding non-presentment;

Or promises to pay the amount due therein whole or in part,

Or otherwise waives his right to take advantage of any default in presentment for payment.

(d) As against the drawer, if the drawer could not suffer damage from the want of such presentment.

77. Liability of bankers for negligently dealing with bill presented for payment: -When a bill of exchange accepted payable at a specified bank, has duly presented there for payment and dishonour, if the bankers so negligently or impropriety keeps, deals with or delivers back such bill as to cause loss to the holder, he must compensate the holder for such loss.

CHAPTER VI

OF PAYMENT AND INTEREST

78. To whom payment should be made. -Subject to the provision of section 82, clause (c), payment of the amount due on a promissory notes, bill of exchange or cheque must, in order to discharge the maker or acceptor, be made to the holder of the instrument.

79. Interest when rate specified; -When interest at a specified rate is expressly made payable on a promissory note or bill of exchange, interest shall be calculated at the rate specified, on the amount of the principal money due thereon, from the date of the instrument, until tender or realisation of such amount, or until such date after the institution of a suit to recover such amount as the court directs.

80. Interest when no rate specified: -When no rate of interest is specified in the instrument, interest on the amount due thereon shall, 1[notwithstanding any agreement relating to interest between any parties to the instrument], be calculated at the rate of 2[eighteen per centum] per annum, from the date at which the same ought to have been paid by the patty charged, until tender or realisation of the amount thereon, or until such date after the institution of a suit to recover such amount as the court directs.

Explanation: When the party charged is the endorser of an instrument dishonoured by non-payment, he is liable to pay interest only from the time that he receives notice of the dishonour.

1. Substituted by Act 30, of 1926, for “except in case provided for by the Code of Civil Procedure”.

2. Substituted by Act 66 of 1988 for words “six per centum”, w.e.f. 30-12-1988.

81. Delivery of instrument on payment or indemnity in case of loss: -Any person liable to pay, and called upon by the holder thereof to pay, the amount due on a promissory note, but of exchange or cheque is before payment entitled to have it shown, is on payment entitled to have it delivered up to him, or, if the instrument is lost or cannot be produced, to be indemnified against any further claim thereon against him.

CHAPTER- VII

OF DISCHARGE FROM LIABILITY ON NOTES, BILLS AND CHEQUES

82. Discharge from liability. -The maker, acceptor or endorser respectively of a negotiable instrument is discharged from liability thereon-

(a) By cancellation-to a holder thereof who cancels such acceptor's or endorser's name with intent to discharge him, and to all parties claiming under such holder,

(b) By release- to a holder thereof who otherwise discharges such maker, acceptor or endorser, and to all parties deriving title under such holder after notice of such discharge;

(c) By payment-to all parties thereto, if the instrument is payable to bearer, or has been endorsed in blank, and such maker, acceptor or endorser makes payment in due course of the amount due thereon.

83. Discharge by allowing drawee more than forty-eight hours to accept. -If the holder of a bill of exchange allows the drawee more than 1[forty eight] hours, exclusive of public holidays, to consider whether he will accept the same, all previous parties not consenting to such allowance are thereby discharged from liability to such holder.

1. Substituted by Act 12 of 1921 for “twenty-four”.

84. When cheque not duly presented and drawer damaged thereby. -

1[(1) Where a cheque is not presented for payment within a reasonable time of its issue, and the drawer or person on whose account it is drawn had the right, at the time when presentment ought to have been made, as between himself and the banker, to have the cheque paid and suffers actual damage though he delays, he is discharged to the extent of such damage, that is to say, to the extent to which such drawer or person is a creditor of the banker to a large amount than he would have been if such cheque had been paid.

(2) In determining what is a reasonable time, regard shall be had to the nature of the instrument, the usage of trade and of bankers, and the facts of the particular case. (3) The holder of the cheques as to which such drawer or person is so discharged shall be a creditor, in lieu of such drawer or person, of such banker to the extent of such discharge and entitled to recover the amount from him.

Illustrations

(a) A draws a cheque for Rs. 1,000, and, when the cheque ought to be presented, has funds at the bank to meet it. The bank fails before the cheque is presented. The drawer is discharged, but the holder can prove against the bank for the amount of the cheque.

(b) A draws a cheque at Umballa on a bank in Calcutta. The bank fails before the cheque could be presented in ordinary course. A is not discharged, for he has not suffered actual damage through any delay in presenting the cheque.

1. Substituted by Act 6 of 1987.

85. Cheque payable to order: -

1[(1) Where a cheque payable to order purports to be endorsed by or an behalf of he payee, the drawee is discharged by payment in sue course.

2[(2) Where a cheque is originally expressed to be payable to be payable to bearer, the drawee is discharged by payment in due course to the bearer thereof, notwithstanding any endorsement whether in full or in blank appearing thereon, and notwithstanding that any such endorsement purports to restrict of exclude further negotiation.

1. Section 85 renumbered as sub-s. (1) and sub-s. (2), added by Act 17 of 1934.

2. Inserted by Act 25 of 1930.

1[85A. Drafts drawn by one branch of a bank on another payable to order: -Where any draft, that is an order to pay money, drawn by one office of a bank upon another office of the same bank for a sum of money payable to order on demand, purports to be endorsed by or behalf of the payee, the bank is discharged by payment in due course.]

1. Inserted by Act 25 of 1930.

86. Parties not consenting discharged by qualified or limited acceptance: -If the holder of a bill of exchange acquiesces in a qualified acceptance, or one limited to part of the sum mentioned in the bill, or which substitutes a different place or time for payment, or which, where the drawees are not partners, is not signed by all the drawees, all previous parties whose consent is not obtained to such acceptance are discharged as against the holder and those claiming under him, unless on notice give any the holder they assent to such acceptance.

Explanation: An acceptance is qualified

(a) Where it is conditional, declaring the payment to be dependent or the happening of an event therein stated;

(b) Where it undertakes the payment of part only of the sum ordered to be paid;

(c) Where, no place of payment being specified on the order it undertakes the payment at a specified place, and not otherwise or elsewhere; or where, a place of payment being specified in the order, it undertakes the payment at some other place and not otherwise or elsewhere;

(d) Where it undertakes the payment at a time other than that at which under the order or would be legally due.

87. Affect of material alteration. -Any material alteration of a negotiable instrument renders the same void as against anyone who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties;

Alteration by endorsee: And any such alteration, if made by an endorsee, discharges his endorser from all liability to him in respect of the consideration thereof.

The provisions of this section are subject to those of sections 20, 49, 86 and 125.

88. Affect of material alteration: -An acceptor or endorser of a negotiable instrument is bound by the acceptance or endorsement notwithstanding any previous alteration of the instrument.

89. Payment of instrument on which alteration is not apparent: Where a promissory note, bill of exchange or cheque has been materially altered but does not appear to have been so altered, or where a cheque is presented for payment which does not at the time of presentation appear to be crossed or to have had a crossing which has been obliterated, payment thereof by a person or banker liable to pay an paying the same according to the apparent tenor thereof at the time of payment and otherwise in due course, shall discharge such person or banker liable to pay and paying the same according to the apparent tenor thereof at the time of payment and otherwise in due course, shall discharge such a person or banker from all liability thereon, and such payment shall not be questioned by reasons of the instrument having been altered, or the cheque crossed.

90. Extinguishment of rights of action on bill in acceptor's hands: -If a bill of exchange which has been negotiated is, at or after maturity, held by the acceptor in his own right, all right of action thereon are extinguished.

CHAPTER-VIII

OF NOTICE OF DISHONOUR

91. Dishonour by non-acceptance: -A bill of exchange is said to be dishonoured by non-acceptance when the drawer, or one of several drawees not being partners, makes default in acceptance upon being duty required to accept the bill, or where presentment is excused and the bill is not accepted Where the drawee is incompetent to contract, or the acceptance is qualified the bill may be treated as dishonoured.

92. Dishonour by non-payment: -A promissory note, bill of exchange or cheque is said to be dishonoured by nonpayment when the maker of the note, acceptor of the bill or drawee of the cheque makes default in payment upon being duly required to pay the same.

93. By and to whom notice should be given: -When a promissory note, bill of exchange or cheque is dishonoured by non-acceptance of non-payment, the holder thereof, or some party thereto who remains liable thereon, must give notice that the instrument has been so dishonoured to all other parties whom the holder seeks to make severally liable thereon, and to some one of several parties whom he seeks to make jointly liable thereon.

Nothing in this section renders it necessary to give notice to the maker of the dishonoured promissory note, or the drawee or acceptor of the dishonoured bill of exchange or cheque.

94. Mode in which notice may be given. -Notice of dishonour may be given to a duly authorised agent of the person to whom it is required to be given, or, where he has died, to his legal representative, or, where he has been declared an insolvent, to his assignee; may be oral or written; may, if written, be sent by post; and may being any form; but it must inform the party to whom it is given, either in express term or by reasonable intendment that the instrument has been dishonoured, and in what way, and that he will be held liable thereon; and it must be given within a reasonable time after dishonour, at the place of business or (in case such party has no place of business) at the residence of the party for who it is intended.

If the notice is duly directed and sent by post and miscarriage, such miscarriage does not render the notice invalid.

95. Party receiving must transmit notice of dishonour: -Any party receiving notice of dishonour must, in order to render any prior party libel to himself, give notice of dishonour to such party within a reasonable time, unless such party otherwise receives due notice as provided by section 93.

96. Agent for presentment: -When the instrument is deposited with an agent for presentment, the agent is entitled to the same time to give notice to his principal as if he were the holder giving notice of dishonour, and the principal is entitled to a further like period to give notice of dishonour.

97. When party to whom notice given is dead: -When the party to whom notice of honour is dispatched is dead, but the party dispatching the notice is ignorant of his death, the notice if sufficient.

98. When notice of dishonour is unnecessary: - No notice of dishonour is necessary

(a) When it is dispensed with by the party entitled thereto;

(b) In order to charge the drawer, when he has countermanded payment;

(d) When the party entitled to notice cannot after due search be found; or the party bound to give notice is, for any other reason, unable without any fault of his own to give it;

(e) To charge the drawers, when the acceptor is also a drawer;

(f) In the case of a promissory note which is not negotiable;

(g) When the party entitled to notice, knowing the facts, promises unconditionally to party the amount due on the instrument.

CHAPTER IX

OF NOTING AND PROTEST

99. Noting: -When a promissory note or bill or exchange has been dishonoured by non-acceptance or non-payment, the holder may cause such dishonoured to be noted by a notary public upon the instrument, or upon a paper attached thereto, or party upon each.

Such note must be made within a reasonable time after dishonour, and must specify the date of dishonour, the reason, if any assigned for such dishonour, or if the instrument has not been expressly dishonoured, the reason why the holder treats it as dishonoured, and the notary's charges.

100. Protest. -When a promissory note or bill of exchange has been dishonoured by non-acceptance or non-payment, the holder may, within a reasonable time, accuse such dishonour to be noted and certified by a notary public. Such certificate is called a protest.

Protest for better security: When the acceptor of a bill of exchange has become insolvent, or his credit has been publicly impeached, before the maturity of the bill, the holder may, within a reasonable time, cause a notary public to demand better security of the acceptor, and on its being refused may, with a reasonable time, cause such facts to be noted and certified as aforesaid. Such certificate is called a protest for better security-

101. Contents of protest: -A protest under section 100 must contain. -

(a) Either the instrument itself, or a literal transcript of the instrument and of everything written or printed thereupon;

(b) The nature of the person for whom and against whom the instrument has been protested;

(c) A statement that payment or acceptance, or better security, as the case may be, has been demanded of such person by the notary public; the term of his answer, if any, or a statement that he gave no answer, or that he could not be found;

(d) When the note or bill has been dishonoured, the place and time of dishonour, and, when better security has been refused, the place and time of refusal.;

(e) The subscription of the notary public making the protest;

(f) In the event of an acceptance for honour or of a payment for honour, the name of the person by whom, of the person for who, and the manner in which, such acceptance or payment was offered and affected.

1[A notary public may make the demand mentioned in clause (c) of this section either person or by his clerk or, were authorised by agreement or usage, by registered letter.]

1. Added by Act 2 of 1885.

102. Notice of protest: -When a promissory note or bill of exchange is required by law to be protested, notice of such protest must be given instead of notice of dishonour, in the same manner and subject to the same conditions; but the notice may be given by the notary public who makes the protest.

103. Protest for non-payment after dishonour by non-acceptance. -All bills of exchange drawn payable at some other place than the place mentioned as the residence of the drawee, and which are dishonoured by non-acceptance, may, without further presentment to the drawee, be protested for non-payment, in the place specified for payment, unless paid before or at maturity.

104. Protest of foreign bills. -Foreign bills of exchange must be protested for dishonour when such protest is required by the law of the place where they are drawn.

1[104A. When noting equivalent to protest: -For the purpose of this Act, where a bill of notes is required to be protested within a specified time or before some further proceeding is taken is it sufficient that the bill has been noted for protest before the expiration of the specified time or the taking of the proceeding; and the formal protest may be extended at any time thereafter as of the date of the noting.]

1. Inserted by Act 2 of 1885.

CHAPTER-X

OF REASONABLE TIME

105. Reasonable time: -In determining what is a reasonable time for presentment for acceptance or payment, for giving notice of dishonour and for nothing, regard shall be had to the nature of the instrument and the usual course of dealing with respect lo similar instruments; and, in calculating such time, public holidays shall be excluded.

106. Reasonable time of giving notice of dishonour. -If the holder and the party to whom notice of dishonour is given carry on business or live (as the case may be) in different places, such notice is given within a reasonable time if it is dispatched by the next post or on the day next after the day of dishonour.

If the said parties carry on business or live in the same place, such notice is give within a reasonable time if it is dispatched in time to reach its destination on the date next after the day of dishonour.

107. Reasonable time for transmitting such notice: -A party receiving notice of dishonour, who seeks to enforce his right against a prior party, transmits the notice within a reasonable time if the transmits it within the same time after its receipt as he would have had to give notice if he had been the holder.

CHAPTER-XI

OF ACCEPTANCE AND PAYMENT FOR HONOUR AND

REFERENCE IN CASE OF NEED

108. Acceptance for honour: -When a bill of exchange has been noted or protested for non-acceptance or for better security, any person not being a party already liable thereon may, with the consent of the holder, by writing on the bill accept the same for the honour of any party thereto 1[* * *].

1. Second sentence omitted by Act 2 of 1985.

109. How acceptance for honour must be made. -A person desiring to accept for honour must, 1(by writing on the bill under his hand], declare that he accepts under protest the protested bill for the honour of the drawer or of a particular endorser whom he names, or generally for honour 2[* * *].

1. Substituted by Act 2 of 1885, for words “in the presence of a notary public, subscribe the bill with his own hand, and”.

2. Words “and such declaration must be recorded by the notary in his register” omitted by Act 2 of 1885.

110. Acceptance not specifying for whose honour it is made: -Where the acceptance does not express for whose honour it is made it shall be deemed to be made for the honour of the drawer.

111. Liability of acceptor for honour: -An acceptor or honour binds himself to all parties subsequent to the party for whose honor he accepts to pay the amount of the bill if the drawee does not; and such party and shall prior parties are liable in their respective capacities to compensate the acceptor for honour for all loss or damage sustained by him in consequence of such acceptance.

Nut an acceptor for honour is not liable to the holder of the bill unless it is presented, or (in case the address given by, such acceptor in the bills is a place other than the place where the bill is made payable) forwarded for presentment, not later than the day next after the day of its maturity.

112. When acceptor for honour may be charged: -An acceptor for honour cannot be charged unless the bill has at its maturity been presented to the drawee for payment, and has dishonoured by him, and noted or protested for such dishonour.

113. Payment for honour: -When a bill of exchange has been noted or protested for non-payment, any person may pay the same for the honour of any part liable to pay the same; provided that the person so paying 1[or his agent in that behalf] has previously declared before a notary public the party for whose honour he pays, and that such declaration has been recorded by such notary public.

1. Inserted by Act 2 of 1885.

114. Right of payer for honour: -Any person so paying is entitled to all the rights in respect of the bill, of the holder at the time of such payment, and may recover from the party for whose honour he pays all sums so paid, with interest thereon and with all expenses property incurred in making such payment.

115. Drawee in case of need: -Where a drawee in case of need is named in a bill of exchange, or in any endorsement thereon, the bill is not dishonoure6 until it has been dishonoured by such drawee.

116. Acceptance and payment without protest: -A drawee in case of need may accept and pay the bill of exchange without previous protest.

CHAPTER XII

OF COMPENSATION

117. Rules as to compensation: -The compensation payable in case of dishonour of promissory note, bill of 1[* * *] exchange or cheque, by any party liable to the holder or any endorsee, shall be determined by the following rules:

(a) The holder is entitled to the amount due upon the instrument together with the expense property incurred in presenting, noting and protesting it;

(b) When the person charged resides at a place different from that at which the instrument was payable, the holder is entitled to receive such sum at the current rate of exchange between the two places;

(c) An endorser who, being liable, has paid the amount due on the same is entitled to the amount so paid with interest at 2[eighteen per centum] per annum from the date of payment until tender or realisation thereof, together with all expenses caused by the dishonour and payment.

(d) When the person charged and such endorser resides at different places, the endorser is entitled to receive such sum at the current rate of exchange between the two places;

(d) The party entitled to compensation may draw a bill upon the party, liable to compensate him, payable at sight or on demand, for the amount due to him, together with all expenses properly incurred by him. Such bill must be accompanied by the instrument dishonoured and the protest thereof (if any). If such bill is dishonoured, the party dishonoring the same is liable to make compensation thereof in the same manner as in the case of the original bill.

1. Words figure and brackets “(except in cases provided for by the Code of Civil Procedure’s 532)” omitted by Act 30 of 1926.

2. Substituted by Act 66 of 1988 for “six per centum” w.e.f. 30-12-1988.

CHAPTER X-III

SPECIAL RULES OF EVIDENCE

118. Presumptions as to negotiable instruments of consideration: -Until the contrary is proved, the following presumptions shall be made: -

(a) Of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has bee accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.

(b) As to date that every negotiable instrument bearing a date was made or drawn on such date;

(c) As to time of acceptance-that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;

(d) As to time of transfer-that every transfer of a negotiable instrument was made before it s maturity;

(e) As to order of endorsements-that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;

(f) As to stamps-that a lost promissory note, bill of exchange or cheque was duly stamped;

(g) That holder is a holder in due course-that the holder of a negotiable instrument is a holder in due course; provided that, where the instrument has been contained from its lawful owner, or form any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving the holder is a holder in due course lies upon him.

119. Presumption on proof of protest: -In a suit upon an instrument, which has been dishonoured, the court shall, on proof of the protest, presume the fact of dishonour, unless and until such fact is disproved.

120. Estoppel against denying original validity of instrument: - No maker of a promissory note, and no drawer of a bill of exchange or cheque, and not acceptor of a bill of exchange for the honour of the drawer shall, on proof of the protest, presume the fact of dishonour, unless and until validity of the instrument as originally made or drawn.

121. Estoppel against denying capacity of payee to endorse: - No maker of a promissory note and no acceptor of a bill of exchange or cheque, and no acceptor of a bill of exchange 1[payable to order] shall, in suit thereon by a holder in due course, be permitted to deny the payee’s capacity, at the rate or the note or bill, to endorse the same.

1. Substituted by Act 8 of 1919 for “payable to, or to the order of, a specified person”.

122. Estoppel against denying signature or capacity of prior party: -No endorser of a negotiable instrument shall, in a suit thereon by a subsequent holder, be permitted to deny the signature or capacity to contract of any prior party to the instruments.

CHAPTER XIV

OF CROSSED CHEQUES

123. Cheque Crossed generally: -Where a cheque bears across its face an additional of words “any company” or any abbreviation thereof, between two parallel transverse lines or of two parallel transverse lines simply, either with or without the words “not negotiable”, that addition shall be deemed a crossing, and the cheque shall be deemed to crossed generally.

124. Cheque crossed specially: -Where a cheque bears across it face an addition of the name of a banker, either with or without the words “not negotiable”, that addition shall be deemed a crossing and the cheque shall be deemed to be crossed specially, and to be crossed to that banker.

125. Crossing after issue: -Where a cheque is uncrossed, the holder may cross it generally or specially.

Where a cheque is crossed generally, the holder may cross it specially.

Where a cheque is crossed generally or specially, the holder may add the words “not negotiable”.

Where a cheque is crossed specially, the bankers to whom it is crossed may again cross it specially to anther banker, his agent, for collection.

126. Payment of cheque crossed generally: -Where a cheque is crossed generally, the banker on whom it is drawn shall not pay it otherwise than to banker.

Payment of cheque crossed specially: Where a cheque is crossed specially, the banker or whom it is drawn shall not pay it otherwise than no the banker to whom it is crossed, or his agent for collection.

127. Payment of cheque crossed specially more than once: -Where a cheque is crossed specially to more than one banker, except when crossed to an agent for the purpose of collection, the banker on whom it is drawn shall refuse payment thereof.

128. Payment in due course of crossed cheque: -Where the banker on whom a crossed cheque is drawn has paid the same indue course, the banker paying the cheque, and (incase such cheque has come to the hands of the payee) the drawer thereof, shall respectively be entitled to the same rights, and be placed in the same position in all respect, as they would respectively be entitled to and placed in if the amount of the cheque had been paid to and received by the true owner thereof.

129. Payment of crossed cheque out of due course: -Any banker paying a cheque crossed generally otherwise than to a banker, or a cheque crossed specially otherwise than to the banker to whom the same is crossed, or his agent for collection, being a banker, shall e liable to the true owner of the cheque for any loss he may sustain owing to the cheque having been so paid.

130. Cheque bearing “not negotiable”: -A person taking a cheque crossed generally or specially, bearing in either case the words “not negotiable”, shall not have and shall not be capable of giving, a better title to the cheque than that which the person from whom he took it had.

131. Non-liability of banker receiving payment of cheque: -A banker who has in good faith and without negligence received payment for a customer of a cheque crossed generally or specially to himself shall not, in case the title to the cheque proves defective, incur any liability to the true owner of the cheque by reason only of having received such payment.

1[Explanation: A banker receives payment of a crossed cheque for a crossed cheque for a customer within the meaning of his section notwithstanding that he credits his customer’s accounts with the amount of the cheque before receiving payment thereof].

1. Added by Act 18 of 1922.

1[131A. Application of chapter to drafts: -The provisions of this chapter shall apply to any draft, as defined in section 85A, as if the draft were a cheque.

1. Added by Act 33 of 1947.

CHAPTER XV

OF BILLS IN SETS

132. Set of bills: -Bills of exchange may be drawn in part, each part being numbered and containing a provision that it shall continue payable only so long as the others remain unpaid. All the parts together make a set; but the whole set constitutes only one bill, and is extinguished when one of the part if a separates bill would be extinguished.

Exception: When a person accepts or endorses different parts of the bill in favour of different person, he and the subsequent endorsers of each part are liable on such part as if it were a separate bill.

133. Holder of first acquired part entitled to all: -As between holders in due course of different parts of the same set, he who first acquired title to his part is entitled to the other parts and the money represented by the bill.

CHAPTER XVI

OF INTERNATIONAL LAW

134. Law governing liability of maker, acceptor or endorser of foreign instrument- In the absence of a contract to the contrary, the liability of the maker of drawer of a foreign promissory note, bill of exchange or cheque is regulated in all essential matters by the law of the place where he made the instrument, and the respective liabilities of the acceptor and endorser by the law of the place where the instrument is made payable.

Illustration

A bill of exchange was drawn by A California where the rate of interest is 25 per- cent, and accepted by B, payable in Washington where the rate of interest is 6 per cent. The bill is endorsed in 1[India], and is dishonoured. An action on the bill is brought against B in 2 [India]. He is liable to pay interest at the rate of 6 per cent, only; but if A is charged as drawer, A is liable to pay interest at the rate of 25 percent.

135. Law of place of payment governs dishonours: -Where a promissory note, bill of exchange or cheque is made -payable in a different place from that in which it is made or endorsed, the law of the place, where it is made payable determines what constitutes dishonour and what notice of dishonour is sufficient.

Illustration

A bill of exchange drawn and endorsed in 1[India], but accepted payable in France, is dishonoured. The endorsee cause it to be protested for such dishonour, and gives notice thereof in accordance with the law of France through not in accordance with the rules herein contained in respect of bills which are no! foreign. The notice is sufficient.

1. Words “out of British India” were successively amended by the A.O. 1948, the A.O. 1950 and Act 3 of 1951.

136. Instrument made, etc. out of India, but in accordance with the law of India: -If a negotiable instrument is made, drawn accepted or endorsed 1[outside India], but in accordance with the 1[law of India] the circumstance that any agreement evidenced by such instrument is invalid according to the law of the country wherein it was entered into does not invalidate any subsequent acceptance or endorsement made thereon 1[within India].

1. Substituted by Act 3 of 1951 for words “the State”

137. Presumption as to foreign law: -The law of any foreign country 1[* * *] regarding promissory note, bills of exchange and cheques shall be presumed to be the same as that of 2[India], unless and until the contrary is proved.

1. The words “ or the State Jammu and Kashmir” omitted by Act 62 of 1956.

2. The words “British India” has been successively substituted by the AO 1948, AO 1950 and Act 3 of 1951 to read as above.

1 [CHAPTER XVII]

OF PENALTIES IN CASE OF DISHONOUR OF CERTAIN CHEQUES FOR

INSUFFICIENCY OF FUNDS IN THE ACCOUNTS

1. Inserted by Act 66 of 1988, w.e.f. 1-4-1989. Earlier Chapter XVII relating to “ Notaries Public” Inserted by Act 2 of 1985 was replaced by the Notaries Act, 1952 (53 of 1952), w.e.f. 14-2-1956.

138. Dishonour of cheque for insufficiency, etc., of funds in the accounts: -Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both:

PROVIDED that nothing contained in this section shall apply unless-

(a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.

(b) The payee or the holder induce course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer, of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheques as unpaid, and

(c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation: For the purpose of this section, “debt or other liability” means a legally enforceable debt or other liability.

139. Presumption in favour of holder: -It shall be presumed, unless the Contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability.

140. Defence which may not be allowed in any prosecution under section 138: - It shall not be a defence in a prosecution of an offence under section 138 that the drawer had no reason to believe when he issued the cheque that the cheque may be dishonoured on presentment for the reasons stated in that section.

141. Offences by companies. -

(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and proceeded against and punished accordingly;

PROVIDED that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attribute to, any neglect on the part of, any director, Manager, secretary, or other office of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation: For the purpose of this section. -

(a) “Company” means any body corporate and includes a firm or other association of individuals; and

(b) “Director”, in relating to a firm, means a partner in the firm.

142. Cognizance of offences: -Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)

(a) No court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque.

(b) Such complaint is made within one month of the date on which the cause of action arises under clause (C) of the proviso to section 138.

(c) No court inferior to that of a Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.