In India, the Negotiable Instruments Act, 1881 governs the use of negotiable instruments like promissory notes, bills of exchange, cheques and many more. It plays an important role in regulating the growth of banking and commercial transactions and legalises the system of negotiable instruments.
The term ‘Negotiable’ means ‘transfer by endorsement or delivery’ and the term ‘Instrument’ means ‘any legal document in writing, which is created in favour of any person.
Therefore, Negotiable Instruments are written statements implying payment of money, either on demand or within a particular time period with the drawer’s/payer’s name on it.
In India, Negotiable Instruments Act, 1881 codifies the law governing transactions involving negotiable instruments. As can be seen, this is a law passed during the British Era which continues till date to govern economical transactions.
As per the Negotiable Instrument Act, there are various negotiable instruments; such as cheques, promissory notes, bills of exchange, bank notes, etc. However, for day to day transactions, cheque is the most widely used negotiable instrument in businesses today.
Section 6 of the Act defines a cheque as a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of ‘a truncated cheque’ and ‘a cheque in the electronic form’
A cheque is a negotiable instrument that involves different parties for its processing. Here they are:
Dishonor of cheque :- According to the Negotiable Instruments Act 1881, when the drawer pays off his lability to the payee through cheque and bank returns the cheque unpaid due to insufficient balance or any other reason on the account held by the drawer, the liability/debt remains due to the drawer and the amount remains unpaid. This is known as the dishonuor of cheque.
The return of cheque can be because of insufficient funds in the account or due to exceeding the limit of the amount which was agreed to be paid by the bank. Such a default by any person, creates a liability.
If the cheque was issued as a gift, towards lending a loan or for unlawful purposes, then the drawer cannot be prosecuted in such cases.
Sec 138 of the Negotiable Instruments Act 1881 provides for the following steps to lodge a complaint for dishonour of cheque:
Section 138 of the Act protects the payee from any illegal act on the part of the drawer. As cheques are commonly used instruments in the business world, banking sector needs to be protected. It not only aims at speedy disposal of cases but also to bring a sanctity to the system by seeking to clamp down on defaults in payments and has empowered the payee against drawer to bring higher virtuousness to cheque transactions.
The law of negotiable instruments is very comprehensive and includes penal provisions. It might land you in trouble if you fail to take appropriate action at the right time. Hence, the best idea would be to seek help from knowledgeable professionals without any delay, in case you are facing issues related to the NI Act.
INTRODUCTION:
The Rapid development of information and communication technologies over the past decade has revolutionized both business and individual practices. Advancement of science and technology has brought the creation of Computer, Debit card, credit card, ATM, PayTm, Mobile, SMS, WhatsApp, Facebook, online transaction, card swapping at shop, etc. Much business transaction in today’s world takes place through electronic modes. The worldwide explosion of electronic commerce and the developments in the computer and telecommunications sectors are deeply changing the delivery and availability of information, acts, transactions and services.
Most electronic records are, in practice, being admitted as evidence in court of law. However courts have struggled with the traditional rules of evidence, with inconsistent results. The common term “reliability” has caused confusion between the principles of authentication, best evidence and hearsay.
EVIDENCE:
Definition of ‘Evidence’ in Section 3, the interpretation clause of the Indian Evidence Act 1872, states:
‘Evidence’ means and includes –
Such documents are called documentary evidence.
ELECTRONIC RECORD:
According to section 2(1)(t) of the Information Technology Act, 2000 “electronic record” means data, record or data generated, image or sound
stored, received or sent in an electronic form or micro film or computer
generated microfiche.
ELECTRONIC EVIDENCE:
Data (comprising the output of analogue devices or data in digital format) that is manipulated, stored or communicated by any man-made device, computer or computer system or transmitted over a communication system, that has the potential to make the factual account of either party more probable or less probable than it would be without the evidence
WHICH PROVISIONS DEALS WITH THE ELECTRONIC EVIDENCE?
65A – Special provisions as to evidence relating to electronic record
65B – Admissibility of electronic records.
67A – Proof as to digital signature
73A – Proof as to verification of digital signature
81A – Presumption as to Gazettes in electronic forms
85A – Presumption as to electronic agreements
85B – Presumption as to electronic records and digital signatures
85C – Presumption as to Digital Signature Certificates
88A – Presumption as to electronic messages
90A – Presumption as to electronic records five years old
131 – Production of documents or electronic records which another person, having possession, could refuse to produce.
HOW TO PROVE THE DOCUMENT BY MEAN OF ELECTRONIC?
Electronic Messages:
It includes emails, SMS, MMS etc. of messages sent vial social networking sites, like WhatsApp, twitter etc. Under the provisions of Section 88A,there is a presumptions as to such messages, Section 88, 88A, 114(f) of the Evidence Act with section 26 of the General Clause Act are relevant sections for sending and receipt of email and its proof.
E-mails:
To admit emails into evidence, the proponent must show the origin and integrity of emails. He must show who or what originated the email and whether the content is complete in the form intended, free from error or fabrication. In discovery, the proponent needs to prove that the hard copy of the email evidence is consistent with the one in the computer and includes all the information held in the electronic document.
Email is a computer output of electronic record and therefore, it is to be proved in the manner prescribed in Section 65B of the Indian Evidence Act, which requires a certificate to be given by a person occupying responsible position in management of the computer.
Proof of contents of C.D:
The person intending to prove C.D. is required to prove whether the disputed C.D. was prepared by a combination of a computer operating therein or different computer operating in succession over that period or of different combination of computers. It is not necessary to examine the computer expert for the proof of C.D. in addition to the compliance of provisions of section 65B.
Proof of a photograph taken from digital camera:
As per section 2T of Information Technology Act, 2000, a photograph taken from a digital camera is an electronic record and it can be proved as per section 65B of the Indian Evidence Act.
Proof of Sms sent through mobile phone:
As per section 2T of Information Technology Act 2000, ‘Mobile’ is a computer and SMS in the mobile is an electronic record. So, it is to be proved as per section 65B of the Indian Evidence Act which requires a certificate issued by a person, occupying responsible position in relation to operation of that device or management of the relevant activities.
Video Conferencing:
Before a witness is examined in terms of the Audio Video Link, witness is to file an affidavit or an undertaking duly verified before a notary or a Judge that the person who is shown as the witness is the same person as who is going to depose on the screen. A copy is to be made available to the other side.
IMPORTANCE OF ELECTRONIC EVIDENCE:
The use of Electronic evidence has increased in the past few decades as courts have allowed the use of e-mails, digital photographs, ATM transaction logs, word processing documents, instant message histories, files saved from accounting programs, spreadsheets, internet browser histories, databases, the contents of computer memory, computer backups, computer printouts etc.
These various forms of Electronic evidence/ digital evidence are increasingly being used in the judicial proceedings.
Electronic evidence has played vital role in both civil and criminal cases. In civil cases also the transactions and communication of business mostly takes place through electronic and internet. All the records of the transactions and communications are recorded and stored in the electronic devices and these can be used as evidence in future when any dispute arises from those business transactions.
In criminal cases these electronic devices helps to identify the criminals and prove the charges against them. For instances, if any robbery takes place in ATM, through CCTV it can be easily identify who has done the robbery. In any criminal cases like murder, with the help of Call details records, CCTV footage, his chats with any person, audio recording, video recording etc. makes the works of investigating officer easy to find out the accused.
In this significant judgment, the Supreme Court has settled the controversies arising from the various conflicting judgments as well as the practices being followed in the various High Courts and the Trial Courts as to the admissibility of the Electronic Evidences. The Court has interpreted the Section 22A, 45A, 59, 65A & 65B of the Evidence Act and held that secondary data in CD/DVD/Pen Drive are not admissible without a certificate U/s 65 B(4) of Evidence Act. It has been elucidated that electronic evidence without certificate U/s 65B cannot be proved by oral evidence and also the opinion of the expert U/s 45A Evidence Act cannot be resorted to make such electronic evidence admissible.
The judgment would have serious implications in all the cases where the prosecution relies on the electronic data and particularly in the cases of anticorruption where the reliance is being placed on the audio-video recordings which are being forwarded in the form of CD/DVD to the Court. In all such cases, where the CD/DVD are being forwarded without a certificate U/s 65B Evidence Act, such CD/DVD are not admissible in evidence and further expert opinion as to their genuineness cannot be looked into by the Court as evident from the Supreme Court Judgment. It was further observed that all these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic records sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
In the anti corruption cases launched by the CBI and anticorruption/Vigilance agencies of the State, even the original recording which are recorded either in Digital Voice Recorders/mobile phones are not been preserved and thus, once the original recording is destroyed, there cannot be any question of issuing the certificate under Section 65B(4) of the Evidence Act. Therefore in such cases, neither CD/DVD containing such recordings are admissible and cannot be exhibited into evidence nor the oral testimony or expert opinion is admissible and as such, the recording/data in the CD/DVD’s cannot become a sole basis for the conviction.
In the aforesaid Judgment, the Court has held that Section 65B of the Evidence Act being a ‘not obstante clause’ would override the general law on secondary evidence under Section 63 and 65 of the Evidence Act. The Section 63 and Section 65 of the Evidence Act have no application to the secondary evidence of the electronic evidence and same shall be wholly governed by the Section 65A and 65B of the Evidence Act. The Constitution Bench of the Supreme Court overruled the judgment laid down in the State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru[(2005) 11 SCC 600 by the two judge Bench of the Supreme Court. The court specifically observed that the Judgment of Navjot Sandhu supra, to the extent, the statement of the law on admissibility of electronic evidence pertaining to electronic record of this Court, does not lay down correct position and required to be overruled.
The only options to prove the electronic record/evidence is by producing the original electronic media as Primary Evidence court or it’s copy by way secondary evidence U/s 65A/65B of Evidence Act. Thus, in the case of CD, DVD, Memory Card etc. containing secondary evidence, the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.
The Hon’ble High Court of Delhi, while deciding the charges against accused in a corruption case observed that since audio and video CDs in question are clearly inadmissible in evidence, therefore trial court has erroneously relied upon them to conclude that a strong suspicion arises regarding petitioners criminally conspiring with co-accused to commit the offence in question. Thus, there is no material on the basis of which, it can be reasonably said that there is strong suspicion of the complicity of the petitioners in commission of the offence in question.
The speaker of the Legislative Assembly of the State of Haryana disqualified a member for defection. When hearing the matter, the Supreme Court considered the digital evidence in the form of interview transcripts from the Zee News television channel, the AajTak television channel and the Haryana News of Punjab Today television channel. The court determined that the electronic evidence placed on record was admissible and upheld the reliance placed by the speaker on the recorded interview when reaching the conclusion that the voices recorded on the CD were those of the persons taking action. The Supreme Court found no infirmity in the speaker’s reliance on the digital evidence and the conclusions reached by him. The comments in this case indicate a trend emerging in Indian courts: judges are beginning to recognize and appreciate the importance of digital evidence in legal proceedings.
The Hon’ble High Court of Calcutta while deciding the admissibility of email held that an email downloaded and printed from the email account of the person can be proved by virtue of Section 65B r/w Section 88A of Evidence Act. The testimony of the witness to carry out such procedure to download and print the same is sufficient to prove the electronic communication
There was an appeal against conviction following the attack on Parliament on December 13 2001. This case dealt with the proof and admissibility of mobile telephone call records. While considering the appeal against the accused for attacking Parliament, a submission was made on behalf of the accused that no reliance could be placed on the mobile telephone call records, because the prosecution had failed to produce the relevant certificate under Section 65-B(4) of the Evidence Act. The Supreme Court concluded that a cross-examination of the competent witness acquainted with the functioning of the computer during the relevant time and the manner in which the printouts of the call records were taken was sufficient to prove the call records.
The admissibility of the secondary electronic evidence has to be adjudged within the parameters of Section 65B of Evidence Act and the proposition of the law settled in the recent judgment of the Apex Court and various other High Courts as discussed above. The proposition is clear and explicit that if the secondary electronic evidence is without a certificate u/s 65B of Evidence Act, it is not admissible and any opinion of the forensic expert and the deposition of the witness in the court of law cannot be looked into by the court. However, there are few gaps which are still unresolved as what would be the fate of the secondary electronic evidence seized from the accused wherein, the certificate u/s 65B of Evidence Act cannot be taken and the accused cannot be made witness against himself as it would be violative of the Article 19 of the Constitution of India.
The law relating to Force Majeure under Sections 32 of the Indian Contract Act, 1872. It is a contractual provision agreed upon between parties.
The occurrence of a force majeure event protects a party from liability for its failure to perform a contractual obligation. Typically, force majeure events include an Act of God or natural disasters, war or war-like situations, labour unrest or strikes, epidemics, pandemics, etc. The intention of a force majeure clause is to save the performing party from consequences of something over which it has no control. Force Majeure is an exception to what would otherwise amount to a breach of contract.
Given the supply chain disruption caused by the COVID-19 pandemic, it is likely that performances under many contracts will be delayed, interrupted, or even cancelled. Counterparties (especially suppliers) to such contracts may seek to delay and/or avoid performance (or non-performance liability) of their contractual obligations and/or terminate contracts, either because COVID-19 has legitimately prevented them from performing their contractual obligations, or because they are seeking to use it as an excuse to extricate themselves from an unfavorable deal. Further, companies may not be able to perform their obligations under their customer agreements because of their suppliers’ non-performance and may in turn seek to delay and/or avoid performance (or liability for non-performance) of their contractual obligations and/or terminate contracts. Parties may also cite COVID-19 as a basis for renegotiation of price or other key contractual provisions (e.g. volume of materials exported from or imported into affected areas due to shifts in supply and demand). In this context, it is important to determine if COVID-19 will be considered as a ‘force majeure’ event.
Some force majeure provisions may not explicitly list examples, and may simply state that a party will be excused for nonperformance due to unforeseeable events arising through no fault of its own and beyond its reasonable control. A party attempting to use such a clause to excuse its nonperformance or delay in performance due to COVID-19-related circumstances will still likely have to convince the court that it attempted to carry out its performance, but could not do so without incurring some unreasonable expense due to the pandemic
A Covid-19 pandemic could make it more difficult for parties to perform their contractual obligations.
There are two possible instances, which may suggest that a force majeure clause covers a pandemic:
Having said that, whether a party can be excused from a contract on account of Covid-19 being declared a pandemic is a fact-specific determination that will depend on the nature of the party’s obligations and the specific terms of the contract.
A force majeure clause must be expressly provided for under the contract and protection afforded will depend on the language of the clause. In the event of a dispute as to the scope of the clause, the courts are likely to apply the usual principles of contractual interpretation.
A factual determination based on the specific terms of the contract. The courts would examine, whether in each case, impact of Covid-19 pandemic prevented the party from performing its contractual obligation.
In the absence of an express force majeure provision of contract, Frustration of contract will apply as per section 56 of Indian Contract Act.
The said Provision, deals with if the act or purpose of the contract become impossible to perform and become unlawful subsequent the contract being enter into, the contract would get frustrated and automatically from the date of the possibility, the contract would consider void.
The doctrine of frustration will apply if:
The doctrine of frustration results in the contract automatically coming to an end. The parties to the contract will no longer be bound to perform their future obligations. Because of the dramatic consequences contractual frustration, the threshold for proving frustration is much higher than that for most force majeure provisions, since it must be shown that the obligations impacted by the event or circumstance are fundamental to the contract.
Force majeure clauses commonly contain a prompt and time bound notification requirement, which can operate as a contractual condition precedent to relief or not. Such provisions are generally enforceable, and so complying fully with all notice requirements will be important for parties seeking to invoke force majeure.
Insurer might not settle a claim under your health insurance policy if the disease is declared as an epidemic or pandemic by the World Health Organization (WHO).
If person have been suffering from any respiratory-related disease, then his claims under a regular indemnity type health insurance policy or a specific coronavirus insurance policy might not get settled. For instance, if person have been suffering from severe cough, respiratory diseases, breathlessness, flu over the past few days and you plan to take treatment for it, policy might not cover even if it results in symptoms for coronavirus disease/infection.
The insured will not get claim filed for treatment of a disease within the policy waiting period of a health insurance policy if the disease treatment is excluded within the waiting period. Typically, most policies exclude several kinds of treatment in the waiting period of the policy.
A waiting period is a pre-fixed time period starting from the date of purchase of the policy. Coverage of many diseases starts only after this waiting period is over in most health insurance policies.
In the case of health insurance policy, If person are travelling from a coronavirus affected country and diagnosed positive, you will be covered under regular indemnity health insurance policy as long as you are being quarantined in India.”
However, the special coronavirus insurance policy does not cover people who have travelled to coronavirus affected countries such as China, Hong Kong, Macau, Taiwan, Italy, Kuwait, Japan, Singapore, South Korea, Thailand, etc.
Every company impacted by the COVID-19 outbreak would need to consider if adverse financial consequences of business interruption resulting from COVID-19 can be claimed under the insurance policy. Companies should review their existing business interruption insurance policies to protect themselves against any losses sustained from exposure to the epidemic. The extent of insurance cover available to a company will depend on the specific terms of each policy. However, the following aspects should be considered:
It may also be advisable for the company to contact the insurance company and obtain a written confirmation regarding the specific coverage of the policy. Specific clarification should be obtained as to when COVID-19 will become a notifiable event for claiming insurance and determining the relevant loss period
Insurance Regulatory and Development Authority (IRDAI) on March 04, 2020, issued a circular stating that where hospitalisation is covered in a health insurance product, insurers should ensure that the cases related to COVID-19 are expeditiously handled and all expenses incurred during the course of treatment, including during the quarantine period, must be covered by all the insurers subject to the terms of the policy contract and extant regulatory framework. IRDAI has also asked insurers to offer need-based health insurance plans to cover the cost of treatment for coronavirus. Also, all claims reported under COVID-19 shall be thoroughly reviewed by the claims review committee before repudiation. This is relevant in the context of employee-related insurance obtained by companies.
Post COVID-19 being termed as a pandemic by WHO, insurers may deny claims if pandemic and outbreaks are expressly excluded under the terms and conditions of the policy. Most standard insurance policy contracts exclude pandemics from coverage because they are considered a high-risk item with unnaturally higher level of claims. Actuaries are also unable to calculate the risks related to possible pandemics as the situation is very different each time and depends on the underlying disease each time. Some policies exclude epidemics and pandemics altogether, whereas some policies cover medical costs overseas in relation to pandemics and epidemics, but not cancellation costs or loss of bookings.
India’s lockdown to contain the new coronavirus outbreak has brought businesses across the nation to a halt, causing losses. While companies do buy insurance to protect themselves against business interruption, according to insurers such policies don’t cover a pandemic like Covid-19.
Dear Friends, I have been trying to help feed people who don’t have access to food via my NGO – Bharat Utthan Sangh. If you would like to help with feeding truly needy people, do get in touch with me.
“Juhu based advocate Rakesh Singh, who is distributing food to poor through his NGO Bharat Utthan Sangh, got a random call on Sunday, from one of woman (slum dweller) pleading for the help. He put out a message among his friend after stating that if someone close to Chembur can reach to the slum dwellers with help or provide detail of any rationing shop nearby from where they can collect grains (after online payment). “
A false narrative is being created by vested interest to condone the wrongs done by BMC and a lot of things are getting circulated in social media….in fact a narrative is being created to condone the wrongs done by MCGM and pass the buck on people of Mumbai…..Don’t blame Mumbaikars, blame the poor and corrupt management of BMC. It’s easy to blame Aam Aadmi. But sorry, we refuse to take the blame. Our only blame is we are not proactive. I have tried to answer the false narrative of BMC and as under:-
I am a Mumbaikar – I see TV and news media creating a fuss over BMC’s failed response. Yes I agree that the BMC failed in responding or pre-planning adequately to the water logging at a city level but have not YOU failed in your civic sense at individual level?
Answer:- BMC has failed to do what they are paid for. One of the richest corporation of Asia it is also one of the most corrupt and inefficient. We mumbaikars are the highest taxed individual by any municipality.
YOU throw food wrappers and plastic plates and spoons out of trains’ windows and that does not bio-degrade causing blockade in rail drains – the tracks are water logged and trains shut – who is to be blamed – BMC or YOU?
Answer:- plastic is banned and even otherwise there has to be adequate disposal system for disposables. If BMC allows peoples footpath for the use of illegal vendors and there is no place for disposal of that then who is to be blamed ? BMC or We Mumbaikars ?
YOU flush your condoms, sanitary pads and plastic objects down the toilet drain instead of putting it in garbage bin – this blocks the sewer flow speed – who is to be blamed – BMC or YOU?
Answer:- it’s a typical case of blaming the victim for the wrong done to victim. There are hundreds of places where BMC does not visit to collect garbage and people have problm even in throwing their disoosables. Who is to be blamed then ? BMC or We Mumbaikars ?
YOU park your cars on streets in such a way that drains could not be cleaned by BMC trucks – who is to be blamed – BMC or YOU?
Answer:- A non argument in totality. Drains are not cleaned because BMC engineers and contractors are hand in glove in their corrupt practices. Cars if parked properly can always be toed. In fact parking and toeing cars is in itself a big corrupt racket of BMC. They can’t modernise themselves and still indulge in primitive inhuman method of cleaning the drains. Who to blame BMC or Poor Mumbaikar who pays all kind of taxes for holding a car ?
YOU do not segregate waste into wet and dry waste – YOU or YOUR waste collector dumps the garbage irresponsibly on the roads and it litters in rain waters – who is to be blamed – BMC or YOU?
Answer:- Even where people segregate wet and dry waste and give to BMC truck, the BMC finally mixes it and their plant in this regard is practically nonfunctional. Who to blame for this non functionality ?
YOU do not carry re-usable bags to the market and bargain with the sabziwala to give you extra plastic bags instead of going plastic free – who is to be blamed – BMC or YOU?
Answer:- Plastic is banned and how plastic enters the market ? Is it not govt responsible for getting banned item ? Who to blame the thief or corrupt government of the victim ?
YOU can easily carry water in reusable bottles when you venture out of home – yet every time you purchase mineral water and add to plastic waste once finished – who is to be blamed – BMC or YOU?
Answer:- To begin with please ask why plastic bottles are allowed ? Why at all the places including hill stations ? And if there is no clean water for drinking even after 70 years of independence what will people do ? Why no proper disposal for the same. Who is wronged ?
Change starts with YOU – Be a responsible citizen first.
Answer:- Yes, we should be and we should try to make BMC accountabke. Munbaikars pay maximum tax and cess in variety of ways and means. Do you know we also pay metro cess even if we do not use metro ? We as citizens and taxpayers deserve services in return for taxes we pay. Do you know property tax, sewerage tax etc are highest in Mumbai and all this goes to BMC. I as a Mumbaikar and taxpayer wants adequate services in return for taxes I pay. There has to be guarantee for services for which I pay tax.
The content of this document do not necessarily reflect the views / position of RKS Associate, but remains a probable view. For any further queries or follow up please contact RKS Associate at [email protected]