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DISHONOUR OF CHEQUE

SECTION 138 OF NEGOTIABLE INSTRUMENT ACT

DEBT & LIABILITY

In Union of India vs. Raman Iron, AIR 1974 SC 1265, the Hon’ble Supreme Court observed that “the word ‘debt’ is applicable to a sum of money which has been promised at a future day as to a sum now due and payable. When there is an obligation to pay a sum of money at a future date, it is debt owing but when the obligation is to pay a sum of money in presenti, it is a debt due”.

In First National Bank Limited vs. Seth Sant Lal, AIR 1959 Punj. 328, the High Court of Punjab and Haryana, held that “the term liability is of a large and comprehensive signification and when construed in its usual and ordinary sense, it expresses the state of being under obligation in law or in justice”.

In Hameed Joharan vs. Abdul Salam, (2001) 7 SCC 573,  the Hon’ble Supreme Court observed that “the word ‘enforce’ has been attributed a meaning to give force or effect to; to compel obedience to (Black Law Dictionary)”.

ISSUING A CHEQUE

In Gopan vs. Tonny Varghese, 2009 (1) DCR 314, Kerala High Court held in Para 13 that drawing of a cheque means “executing”.

EXECUTION

In In Re: Kuttadan Velayudhan and Others, AIR 2001 Kerala 123, while dealing with the presumption under Section 114 of the Evidence Act for determining as to whether signing of a document means the execution of the document and after noticing three types of cases viz. (1) when defendants merely submitted that signed papers were entrusted to a person and those papers were made use for the purpose of executing an agreement; (2) the signed papers were given on the understanding that a particular document will be made, but contrary to that assurance, a different document was fabricated; (3) where the defendants even though have signed the documents, never intended to bring it in force, a Division Bench of Kerala High Court held in Para 9 that:

“9. To sign means to affix the signature. But when it comes to signing of a written instrument, it implies more than the act of affixing signature. It implies more than the clerical act of writing the name. The intention of the person signing is important. The person should have affixed the signature in the instrument in token of an intention to be bound by its conditions. It has been said that for a signing consists of both the act of writing a person’s name and the intention in doing this to execute, authenticate or to sign as a witness. The execution of a deed or other instrument includes the performance of all acts which may be necessary to render it complete as a deed or an instrument importing the intended obligation of every act required to give the instrument validity, or to carry it into effect or to give it the forms required to render it valid. Thus, the signature is an acknowledgment that the person signing has agreed to the terms of the document. This can be achieved only if a person signs after the document is prepared and the terms are known to the person signing. In that view of the matter, mere putting of signature can not be said to be execution of the document.

It was further held in Para 15 that:

“when a person says that he put the signatures on a blank paper that does not mean that he had admittedly executed the document”.

In Para 16, the Division Bench further repelled the contention that ‘the burden lies on the person who has subscribed his signature to a blank paper’, by observing that:

“we can not ignore the circumstances under which where a person may be compelled to give signed blank papers to another person. The person who signs the paper may not know what are the conditions which will be imposed by the other side. Hence, in such circumstances, a general proposition cannot be laid down that the burden should be on the person who has subscribed his signature to a blank paper.”

VOLUNTARINESS OF ISSUING A CHEQUE

In Taher N. Khambati vs. Vinayak Enterprises, 1 (1995) BC 473, the Andhra Pradesh High Court, while considering the fact of obtaining a pronote against the money advanced and also taking a blank signed cheque from the respondents with the understanding that in case of default in payment in interest, the complainant could fill other columns of the cheque, held that as the appellant has obtained this blank signed cheque with a view to make use of it, as a threat to the respondents for realisation of the amount. So it cannot be construed that the respondents issued the cheque voluntarily for discharge of any debt or legal liability as envisaged under Section 138”.

PRESUMPTION UNDER SECTION 138 N.I.ACT

In N.I.Shaju vs. T.K.Paulose Thondanala House, 2010 (1) DCR 609, the Kerala High Court, held in Para 11 that the presumption under Section 139 of the N.I.Act is for execution and not for signing only.

EXISTENCE OF DEBT OR LIABILITY

In Shanku Concretes Pvt. Ltd. Vs State of Gujarat, 2001 DCR 100, the High Court of Gujarat observed in Para 10 per Justice J.R.Vohra, J that the expression “for the discharge, in whole or in part, of any debt or other liability,”, the pre-existing condition is, there must be the existence of any debt or any other liability, for which the cheque might have been issued and bounced”.

In Indira Baxi & Anr. Vs. Sunita Goyal, 2001 DCR 440, the Madhya Pradesh High Court, directed the Trial Court to consider the absence of any debt or liability in view of the payments made by the accused after receipt of notices.

DISTINCTION BETWEEN “CHEQUE ISSUED AS SECURITY” & “CHEQUE IN DISCHARGE OF LIABILITY”

In K.K.Bakshi & Anr. Vs. State & Anr., (1) 2008 CCR 34 (DHC), the High Court of Delhi noticed distinction between “cheque issued as security” and “cheque in discharge of liability”.

BLANK CHEQUE

In C. Anthony vs. K.G.Raghavan Nair, 2002 (6) SLT 272, the Hon’ble Supreme Court held that the blank cheque was not covered under section 138 of the N.I.Act as the ink used in the body of the cheque was different from the ink used in the signatures of the cheque.

In Manjit Singh Obhan vs. State of Maharashtra & Ors., 2008 (2) DCR 622, Mumbai High Court held that “if blank signed cheques are issued without mentioning the amount and date, it may be considered that the cheques were not issued for valuable consideration”.

In Ravi Chopra vs. State & Anr., 2008 (2) DCR 235, the Hon’ble High Court repelled the contention that a blank cheque was not a cheque within the meaning of Section 138 as subsequent filling amounted to alteration under Section 87 and it was held to be a cheque in view of Section 118 and Section 87 of the N.I.Act.

UNDATED CHEQUE

In Balaji Seafoods Exports (India) Ltd. Vs. Mac Industries Ltd., 1999 DCR 38 =1999 Cur Cri R 424, while dealing with the case of a signed undated cheque which was issued as a security at the time of entering into a contract, the Hon’ble High Court of Madras, after examining provisions of Section 46 of the N.I.Act, observed in Para 8 that “on the date when the cheque was handed over, there was no legally enforceable debt or other liability” and thus held in Para 10 that “as an undated cheque having given only as security, the provisions of Section 138 of the N.I. Act are not at all attracted”.

POST DATED CHEQUE

In Swastic Coaters vs. Deepak Bros., 1998 DCR 258, it was held that the post dated cheques issued towards price of goods to be supplied by the complainant is not covered under Section 138 of the N.I.act.

CHEQUE ISSUED AS A SECURITY

In Sreenivasan vs. State of Kerala, 2000 DCR 199, the Kerala High Court held that “when a cheque has been issued as a security, no complaint will lie under section 138 of the Negotiable Instruments Act.”

BURDEN TO PROVE

In Jogesh Prasad Singh vs. Ramchander Prasad Singh, AIR 1950 Pat 370, the High Court of Patna held that “It is true that in case of this sort, the initial onus is on the person who alleges that the document was executed by the persons whose names appear thereon as the executants. But where these persons admit their endorsements and allege that they made those endorsements on blank paper, the onus is very easily shifted”.

STATUTORY PRESUMPTIONS & BURDEN TO PROVE

In Kali Ram vs. State of Himachal Pradesh, {(1973) 2 SCC 808}, a three judges bench of the Hon’ble Supreme Court held that “one of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumption arise regarding the guilt of the accused, but the burden in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal.”

In C.Bhaskaran Nair vs. B.Mohanan, 2009 (2) DCR 673, Kerala high Court held that  the burden to prove the case is on the complainant, and in case of denial of execution, there is no presumption.

In Kalavathy vs. Parthasarthy, 2009 (2) DCR 610, Kerala High Court held that mere admission of signature is not sufficient.

PROVING OF A DOCUMENT

In Ramji Dayawala & sons (P) Ltd. vs. Invest Import, AIR 1981 SC 2085, the Hon’ble Supreme Court laid down that “undoubtedly, mere proof of handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue, mere proof of the handwritings and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue”.

BURDEN TO PROVE EXISTENCE OF DEBT OR LIABILITY

In Arumugham Pillai vs. State of Kerala, 2005 (2) Bankman 158, the Kerala High Court, after examining provisions of Scetion 43 of N.I.Act and Section 2 (d) of the Contract Act, in view of the evidence that the cheque P2 was issued without any consideration, held in Para 6 that “if a holder of the cheque presents the same for encashment, it is his burden to prove that the cheque was issued in discharge of a legally enforceable debt or other liability.

CLOSED ACCOUNT COVERED UNDER SECTION 138 N.I.ACT

In NEPC Micon Ltd. & Ors. Vs. Magma Leasing Ltd., 1999 (2) Civil Court Cases 471 (SC), the Hon’ble Supreme Court held that account closed amounts to insufficient funds.

STOP PAYMENT COVERED UNDER SECTION 138 N.I.ACT

In MMTC Ltd. Vs. Medche Chemicals and Pharma (P) Ltd., {(2002) 1 SCC 234}, the Hon’ble Supreme Court held in Para 19 that Stop payment tantamount to insufficient funds.

In H.D.F.C. Bank Ltd. vs. Amit Kumar Singh, 2009 (3) JCC (NI) 185, the Delhi High Court held that the MM was justified to dismiss the complaint on failure of the complainant to give proof of the “receipt of notice” by the accused.

In Allopi Prasad & sons vs. Harish Chandra, AIR 1973 All. 368, the Allahabad High Court held that the burden to prove that the holder of cheque is holder in due course lies on the plaintiff where fraud is alleged in view of proviso to Section 118(g) of the Evidence Act.

In case of Lost cheque, See illustration ( c ) of S-403 IPC.

In V.Ponnappa Moothan Sons vs. The catholic Syrian Bank & ors., 1990 (19) DRJ 293 (SC), the Hon’ble supreme court dealt holder in due course and Section 118 (g) of the N.I.Act.

In Harman Electronics (p) Ltd. Vs. National Panasonic India Ltd., 2004 (2) C.C.Cases (HC) 92

In Virender Singh vs. Laxmi Narain & Anr., 2007 (1) Bankman 118, the Delhi High Court, held that if a contract is void ab initio, no action under Section 138 lies as there would be no legally enforceable debt.

ABSTRACT ON PH.D IN TERMINOLOGICAL PROBLEMS OF FRENCH HINDI TECHNICAL TRANSLATION

TERMINOLOGICAL PROBLEMS OF TRANSLATION OF FRENCH TECHNICAL TEXTS INTO HINDI

RAMESHWAR DAYAL

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In this contemporary age of informatics & techno-scientific progress, policies of liberalization & globalization of economies throughout the world, have made it imperative to acquire, simultaneously, not only the knowledge but also the know-how about such techno-scientific developments taking place in the world.  In a multi-linguistic world, acquisition of technological know-how & its subsequent development is possible only through translation, which plays the role of a bridge between two distinct linguistic systems.

In the context of our country, assimilation and adaptation of technological know-how to suit our local requirements has made it compulsory for us to acquire technological know-how not only from English speaking world but also from non-English speaking world- especially French speaking world, in the context of our study.

Should a direct contact between two linguistic systems exist, communication through translations is smooth and fast. On the contrary, dependence upon a third language as intermediate for communication results not only in double expenditure & loss of time, but at times, loss of contents. 

At present, no direct linguistic contact between French and Hindi exists and as such, all communications & interactions of India with French speaking world are dependent upon the use of English, as an intermediate language. This obstructs smooth and timely assimilation of ideas emanating from French speaking world and gives rise to misconception about the capacity of Hindi to convey scientific ideas & technical data. Hindi is, as such, considered being poor in technical expression. In the present study, we have examined this misconception by analyzing problems of terminology in the course of translation of French technical texts into Hindi.

In this present research, we have dealt with the purely technical texts, such as:

·        Technical specifications and norms;

·        Technical notices (documents on manufacturing process);

·        Technical handbooks.

Technical texts dealt with by us in our research are mainly from the fields of:

·        Civil engineering, including survey and construction of railway lines, Waterways, airports, roads and bridges, etc.

·        Mechanical Engineering including mechanical science, Specifications of machinery, plants and tools;

·        Electrical engineering, Electronics, Signalling & Telecom.

The present research is first of its kind in the field of translation of French technical texts into Hindi for two reasons:

·        Language pairs selected for study  (French and Hindi) and terminological problems inherent to them;

·        It seeks to project theoretical reflections drawn upon practical experience.

The present research is a unique attempt to explore the possibilities to deal with the problems of translation of purely technical texts from French to Hindi, at a conjuncture when even the field of technical translation between French and English is not fully explored and only a few works such as the <Traduction technique> of Jean Maillot, and <La traduction technique- principes et pratique> of Claude Bedard  and <Scientific and technical translation> of Isadore Pinchuck are available,  in contrast with a wide range of research works available in the field of literary translation between French and English.

The present research is also a solitary attempt of a professional technical translator as most of technical translation professionals do not come forward to theorize & disseminate their respective experiences through research works but on the contrary prefer to keep their expertise with them only.

Translation of technical texts differs from translation of literary texts due to technical texts’ objective, neutral, impersonal, & cognitive style in which they are drafted as also their content. Besides the requirements of prior knowledge of the subject and translator’s capacity to understand or assimilate concepts, notions and principles of the field in question, technical translation requires a thorough knowledge of the language of the text and the terminology used in the source text as well as that to be used in the target text.

As the terminology plays a major role in the scientific and technical texts, it is imperative for a translator to know not only the terms used in the texts but also the criteria of their creation in both languages- Source Language and Target Language.

In our research, by examining steps proposed by well known theoreticians such as Kocourek, Bedard, Jean Maillot, Pinchuck, etc., we have concentrated on translator’s practical approach to terminology rather than purely academic approach of terminologists, such as Dubuc, Kocourek, etc..

To present our point of view in a global manner, we felt it necessary to propose, in the first chapter, a theory of technical translation process consisting of five steps:

·        Reading of the source text;

·        Simultaneous comprehension of the source text;

·        Analysis of inherent traits & structures of the source text;

·        Reproduction of an equivalent target text; and

·        Auto-regulation of target text to meet qualitative requirement of the target language.

We have elaborated in detail on these steps of translation, in a pragmatic manner, in order to explain:

·        How the reading of a given text proceeds, with the help of receptors like eyes- a medium through which human brain perceives transmitted data;

·        How human brain processes data received through eyes, etc;

·        How human brain anticipates, analyses, compares & comprehends data in order to store it at three levels -short memory, medium memory and long memory;

·        How the comprehension of data assists in reformulation of text in the target language;

·        How the target text can be made to appear as an original text drafted in the target language, after remedying eventual lapses in text reformulation.

In the second chapter, we have made attempts to clarify as to what we intend by expression <<technical text>> in the context of our research and as to what we deem the characteristics of such a technical text. We found that technical texts contain several extra-linguistic features besides normal linguistic signs. In fact, technical texts differ with normal general texts due to their graphical features and symbols, which are so closely knitted with general features that they represent an amalgamation of various features in the technical text and sometimes it becomes very difficult to make a net distinction between a normal text and a technical text. In a purely technical text meant for communication between two specialists of the field of engineering, we find special characteristics such as Greek alphabets, alphanumerical, Non-alphanumerical symbols, abbreviations, acronyms, eponyms, which are intertwined in such a manner that a technical text appears prima facie a very distinct one. 

In the third chapter, we have discussed the characteristics of technical terms and various criteria of their creation in French as well as in Hindi. A succinct analysis of several criteria of creation of terms in French and Hindi enabled us to deduce that despite linguistic differences between French and Hindi, both  languages share a common identical platform in so far as criteria for creation of neonymes (new terms) is concerned.

The common criteria for creation of neonymes in both languages are (a) affixation (adhivridhi) (upasarga / pratayaya); (b) confixation; (c) composition (samaas vidhi); (d) parasynthetisation; (e) eponymy; (f) change of grammatical category (vyaakaran saadrasya vidhi) (g) borrowed words (videshi), etc. It is the criteria of <lexicalisation>/ <syntagmatic formation>- a most predominant criteria of creation of technical terms in French, which was found absent in Hindi. The main reason for its absence in Hindi may be the difference of syntactic structures and position of words in both languages: in French, modificator or extension follows main word whereas in Hindi, modificator or extensions are used before main words.

We have also discussed in brief various approaches underlining the creation of terms in Hindi: (a) terms coined as per Sanskrit radicals; (b) terms coined as per nature of Arabic and Urdu; (c) terms of English adapted in Hindi in their transliterated form, besides succinctly examining as to how the official policy of the Government of India laying down the principles for creation of terms came into effect through a centristic approach by accommodating and assimilating many features of various approaches.   

In the fourth chapter, we have succinctly examined certain specificities of technical texts especially signs and symbols and their use in technical texts. We have categorized these symbols from practical point of view of translation as to when they are to be used in the same form following the official policy of the Government and as to when it is incumbent upon translator to translate them in <full words>>, especially when it is not possible to use their equivalent symbols in the target language.  

We have also examined in this chapter as to how translation of units of measurements requires technical translator’s expertise of language and his expertise of subject matter, esp. in the cases where, use of an equivalent term in the target text does not enable user specialist to comprehend target text despite the translation being perfect from the point of view of language. Should the translator convert the unity of measurement, it’s easily comprehensible for such specialist.

In the fifth chapter, we have examined in detail two broad situations faced by technical translators namely  (i) multitude of equivalents & (ii) absence of equivalents and also as to how a practitioner of technical translation solves his problems in such situations.

In case of multitude of terms, we found that a translator is confronted with three distinct situations: -

·        He finds a single term in target language as an equivalent of either monovalent or polyvalent term of source language;

·        He finds many terms in target language as an equivalent of a single term of  source language;

·        He finds that source texts employ a term with a figurative sense- metaphors and metonymies.

While examining problem of absence of equivalents in target language, we gathered the impression that this notion of absence of equivalent is mainly caused by non-availability of dictionaries and this problem is bi-dimensional: there is no French-Hindi or Hindi-French bilingual technical dictionary in the world; secondly, insertion of a term in a dictionary is time consuming and is only possible when a term is widely used & accepted by the society. As such, the problem of absence of terminology becomes superficial, borne out of translator’s dilemma for not finding readily an equivalent in his dictionaries. 

While pondering over a solution to the problem of absence of equivalents in Hindi, we noticed that a competent technical translator, conversant with his subject, can overcome this situation by applying the principles laid down by Standing Commission for Scientific and Technical Terminology, Government of India, namely:

·        By adopting international terms in their current English forms in devanagari script, and in conformity with grammatical rules of Hindi;

·        By continuing the use of words borrowed from English, French, etc.;

·        By using indigenous words in use in Indian languages;

·        By adopting terms of hybrid nature in devanagari;

·        By coining new Hindi terms conforming to its grammatical rules.

To conclude, we can say that a lot is required to be done in the field of French-Hindi translation and it should be our endeavour to ensure that the direct communication between the two languages is possible before Hindi becomes a language of the United Nations.

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