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negotiable-instruments:note:section-140

Defence which may not be allowed in any prosecution under section 138

Section 140 of the Negotiable Instruments Act,1881.

It shall not be a defence in a prosecution for 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.1).

The Section 140 of the Act curtails the accused from raising a defence 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 section 138. Plain reading of the provision clearly shows that for committing an offence under section 138 of the Act mens rea is not an essential ingredient. Sections 138, 139 and 140 of the Act clearly rule out mens rea as an ingredient for the commission of the offence under section 138 of the Act.2)

In Mayuri Pulse Mills and others v. Union of India and others3) the Division Bench of Hon'ble Bombay High Court upholding the constitutional validity of Sections 138, 139 and 140 observed that:

Mere dishonour of cheque for the reasons stated in section 138 of the N.I. Act is sufficient for commission of crime under section 138 of the N.I. Act and it is not material whether he had reason to believe when he issued the cheque that the cheque may not be dishonoured on presentment. For an offence under section 138 of the N.I. Act mens rea is not essential, which is clearly spelt out from reading of section 138. The said provision clearly rules out mens rea as a constituent part of the crime. The position of law is that section 138 brings into operation the rule of strict liability and, therefore, there is nothing unreasonable, if it is provided in section 140 that certain defences may not be allowed in any prosecution under section 138. The rigour of section 138 which creates dishonour of cheque for insufficiency etc. of funds in the account as an absolute offence by legal fiction, is further maintained by making the provisions in section 140 that it shall not be a defence in a prosecution for 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 and, therefore, cannot be said to be unreasonable or arbitrary.

State of mind of accused person, his knowledge or reasonable belief are not the necessary ingredients of an offence under section 138 of the N.I. Act and, therefore, the provision contained in section 140 of the Act that it shall not be a defence in a prosecution for 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, cannot be said to be unreasonable and violative of Article 14 of the Constitution of India.”

Mens rea not necessary: Offence under Section 138 of the Negotiable Instruments Act is a statutory offence. Section 138 of the Negotiable Instruments Act excludes mens rea, by creating strict liability. It does not say that there should be a direct nexus between the person who commits the act and the offence. But, from the words, 'such person shall be deemed to have committed an offence' giving room for a deeming provision would show that not only the principal or direct offender, an indirect offender who has allowed room for perpetuation of the offence, is also liable. Section 140 of the Negotiable Instruments Act in clear terms excludes the defence that the drawer had no reason to believe when he issued a cheque that it may be dishonoured on presentment for the reasons stated in Section 138 of the Negotiable Instruments Act. The exclusion of mens rea as a necessary ingredient of an offence under Section 138 of the Negotiable Instruments Act is very explicit.4)

Presumption is constitutionally valid. The state of mind of the accused person, his knowledge or reasonable belief are not the necessary ingredients of an offence under section 138 of the Negotiable Instruments Act, 1881, and, therefore, the provision contained in section 140 of the Act that it shall not be a defence in a prosecution for 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, cannot be said to be unreasonable and violative of article 14 of the Constitution of India….Thus, we find that in enacting section 140 of the Negotiable Instruments Act, 1881, there is nothing legally or morally wrong or constitutional anathema in such an embargo as provided in section 140 and, therefore, we hold that sections 138 and 140 of the Negotiable Instruments Act, 1881, are constitutionally valid.5)

3)
1996(5) Bom.C.R. 348 : 1995(1) Crimes 226
4)
G. Rukkumani vs K. Rajendran, 2001 CriLJ 3120
5)
Mayuri Pulse Mills And Others vs Union Of India And Others. (1994) 96 BOMLR 953, 1996 86 CompCas 121 Bom

Created on 2021/03/16 07:38 by LawPage • Last modified on 2021/04/09 22:26 (external edit)