Negotiable instruments Act

NEGOTIABLE INSTRUMENTSEvolution & Revolution of Negotiable Instruments

which have Transformed the Commercial World into a Virtual Single Global Peace

Presented By :

(A1 Batch)

Rollno Names

26 Manisha Maheshwari

27 Mehak Kala

29 Mitesh Pomani

30 Mitesh K Shah

36 Rajiv Desai

37 Ravi Rajpurohit

38 Ruchik Gandhi

39 Saurov Sengupta

40 Shuvro Sen

CONTENTS PAGE NO

Evolution Of Negotiable Instruments 2

What Are Negotiable Instruments 7

Types Of Negotiable Instruments 11

Difference Between Negotiable Instruments 22

Features Of Negotiable Instruments 23

Negotiation Of Commercial Paper 25

Exceptions Of Negotiable Instruments 27

E-Transfers

Indian Law Governing Foreign Instruments

Dishonor Of Negotiable Instruments

Negotiable Instruments Connects Global Peace

Case Studies

Fraud

Current Scenario

Summary Bibliography

28

33

35

38

40

44

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58

1. EVOLUTION OF TRADE AND COMMERCE LEADING TO THE INTRODUCTION OF NEGOTIABLE INSTRUMENTS.

The world as a whole has been the “cradle of commerce” because this

exchange is not only between individuals but also between peoples and

nations. This naturally implies the existence of:

1- CERTAIN SURPLUS OF WEALTH

2- CERTAIN PROVISION FOR COMMUNICATION

Both of which are essential for growth of commerce. Unless there is a surplus

of wealth and provision for communication, commerce cannot grow.

EXAMPLE- In the primitive economic society when each tribe or family

produced all that is needed and consumed all that it produced, need of

commerce did not and could not arise. Only after the division of labour and

consequent development of exchange, commerce began to grow. Once it

started growing, it spread its invisible thread throughout the length and

breadth of the world leading to its present day complex mechanism. These

stages may be summarized as follows:

1. NON EXISTENCE OF COMMERCE- In the early stage of economic life

of man division of labour scarcely existed. Man produced what he

needed and consumed all that he produced. Therefore commerce did

not exist in this stage.

2. TRADE IN THE FORM OF BARTER- In the second stage, wants of the

family became more numerous and many families found themselves

with certain goods and surplus and deficient in certain other goods.

These families wanted to exchange their surplus goods for those goods

which they did not possess. This gave rise to “exchange of goods for

goods, i.e., Barter system. Thus this is the place from where commerce

may be said to have begun.

3. MONEY AS A MEDIUM OF TRADE AND TOWN AS THE CENTRE OF

TRADE- Commerce reached into its third stage of growth when money

was evolved as medium of exchange to remove the limitations of barter.

Introduction of money began led to the extension of division of labour

and specialization. People began to produce goods for certain local

markets. Thus, division of labour was extended to a locality. Gradually a

separate class of artisans and traders came into existence. They settled

down at fixed places which came to be known as towns.

Growth of these towns gave great stimulus to commerce. The size of

the market and the number of commodities exchanged in the market,

both increased. Traders from other countries brought luxury articles,

metals and ornaments for sale.

4. ECONOMY AND GROWTH OF COMMERCE- Commerce continued to

grow both in volume and space. After the decline of Guild system, a new

class of people, ENTERPRENEUR class, came into existence. This class

of people became a real intermediary between the producers and

consumers. Further, growth of commercial enterprise took place. Trade

began to assume fixed forms. Production began to be undertaken for the

markets extended for the whole country. Division of labour received further

impetus. Production was divided into several branches and each branch

tended to be localized. Various economic activities came to be clearly

marked off into distinct groups:

A- AGRICULTURE

B- TRADE

C- COMMERCE.

WORLD ECONOMY AND THE WORLD MARKET- Commerce

entered into another stage of its growth when nations of the world were

brought into commercial relationships through the invisible thread of

trade. As a result of the geographical discoveries of the late 15th, 16th

and 17th centuries new trade routes were opened up and commerce

grew between nations. Now, in addition to the local market and the

trade extending over the whole area of a single country, commodities

came to be sold and purchased between traders from different

countries in the world. This gave rise to an international world market

and to the international trade. Thus the nations of the world were linked

together through the medium of the world market.

Evolution of commerce is a never ending process. Almost every day

new experiments in its mechanism are made. New forms and methods

are being evolved in both socialist and capitalist countries, in both

developed and developing nations.

WHY WAS IT NECESARRY TO INTRODUCE NEGOTIABLE

INSTRUMENTS?

Historically business developed by stages.

(1) Pastoral stage (2) Agricultural stage (3) Handicrafts stage (4) Guild

stage (5) Domestic stage and (6) Factory stage.

Pastoral stage: In primitive society man used things just as they were found

in nature. With time, he learned to domesticate animals and breed them for

food and clothing. Since he had to find pastures for his animals, he tended to

lead a wandering life. But in this stage his work served mainly to support only

him with his own needs and left very little surplus available foe exchange on a

business basis.

Agricultural stage: In course of time, the nomadic tribes settled permanently

at fixed places, built up the huts and shelters for their residences and began

cultivating the land in common. Growing corns, grasses etc. became the main

occupation. Agriculture emerged as the basic feature of economic living of

man. He gradually produced more and then started to exchange it with other

commodities. This was known as barter system.

Handicraft stage: In this stage manufacturing was limited to the human

efforts to transform raw materials into finished goods. It included candle and

soap making, spinning, weaving, making of clothes and shoes, blacksmithing,

leather dressing, carpentry etc.

Guild stage: A guild is an association of persons following a similar

occupation and it is formed to protect and promote the interest of its members

through cooperative endeavors.

Domestic stage: A new class entrepreneur emerged as a link between

producer and consumer. Now entrepreneur purchased the raw materials for

the purpose of manufacture and sale nut did not do the processing himself.

He took the risk of productions and sale. Out of the proceeds of his

undertaking, he paid for the materials and labour. The amount left was his

profit

Factory stage: In this stage an organized system of production under a single

roof came to be identified as a factory. Large scale operations with the use of

mechanized production processes resulted in producing good quality products

at cheaper rates. However it was greatly influenced not only by its own

processes but also by government under which it operates.

These were the different stages of evolution of business. However it was

noted that the growth was very slow and the system was very complex. There

were different instruments used to purchase different commodities in different

stages. The system of exchange was such that it led to confusion and various

complexities. To avoid such confusion and to operate the business activities

smoothly negotiable instruments were introduced.

2. WHAT ARE NEGOTIABLE INSTRUMENTS?

Exchange of goods and services is the basis of every business activity. Goods

are bought and sold for cash as well as on credit. All these transactions require

flow of cash either immediately or after a certain time. In modern business, large

number of transactions involving huge sums of money takes place every day. It is

quite inconvenient as well as risky for either party to make and receive payments

in cash. Therefore, it is a common practice for businessmen to make use of

certain documents as means of making payment. Some of these documents are

called negotiable instruments.

Meaning of Negotiable Instruments

The concept of negotiability is one of the most important features of commercial

paper. A negotiable instrument is a written document, signed by the maker or

drawer, and containing an unconditional promise to pay (or order to pay) a

certain sum of money on delivery, or at a definite time, to the bearer (or to the

order).

To understand the meaning of negotiable instruments let us take a few

examples of day-to-day business transactions.

EXAMPLE

Suppose Pitamber, a book publisher has sold books to Prashant for Rs 10,000/-

on three months credit. To be sure that Prashant will pay the money after three

months, Pitamber may write an order addressed to Prashant that he is to pay

after three months, for value of goods received by him, Rs.10,000/- to Pitamber

or anyone holding the order and presenting it before him (Prashant) for payment.

This written document has to be signed by Prashant to show his acceptance of

the order. Now, Pitamber can hold the document with him for three months and

on the due date can collect the money from Prashant. He can also use it for

meeting different business transactions. For instance, after a month, if required,

he can borrow money from Sunil for a period of two months and pass on this

document to Sunil. He has to write on the back of the document an instruction to

Prashant to pay money to Sunil, and sign it. Now Sunil becomes the owner of

this document and he can claim money from Prashant on the due date. Sunil, if

required, can further pass on the document to Amit after instructing and signing

on the back of the document. This passing on process may continue further till

the final payment is made.

In the above example, Prashant who has bought books worth Rs. 10,000/- can

also give an undertaking stating that after three month he will pay the amount to

Pitamber. Now Pitamber can retain that document with himself till the end of

three months or pass it on to others for meeting certain business obligation (like

with Sunil, as discussed above) before the expiry of that three months time

period.

You must have heard about a cheque. What is it? It is a document issued to a

bank that entitles the person whose name it bears to claim the amount

mentioned in the cheque. If he wants, he can transfer it in favour of another

person. For example, if Akash issues a cheque worth Rs. 5,000/ - in favour of

Bidhan, then Bidhan can claim Rs. 5,000/- from the bank, or he can transfer it to

Chander to meet any business obligation, like paying back a loan that he might

have taken from Chander. Once he does it, Chander gets a right to Rs. 5,000/-

and he can transfer it to Dayanand, if required. Such transfers may continue till

the payment is finally made to somebody. In the above examples, we find that

there are certain documents used for payment in business transactions and are

transferred freely from one person to another. Such documents are called

Negotiable Instruments.

Thus, we can say negotiable instrument is a transferable document, where

negotiable means transferable and instrument means document. To elaborate it

further, an instrument, as mentioned here, is a document used as a means for

making some payment and it is negotiable i.e., its ownership can be easily

transferred.

Thus, negotiable instruments are documents meant for making payments, the

ownership of which can be transferred from one person to another many times

before the final payment is made.

Definition of Negotiable Instrument

According to section 13 of the Negotiable Instruments Act, 1881, a negotiable

instrument means “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.

(ii).-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.

(iii).-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.

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.

3. Types of Negotiable Instruments

According to the Negotiable Instruments Act, 1881 there are just three types of

negotiable instruments i.e., promissory note, bill of exchange and cheque.

However many other documents are also recognized as negotiable instruments

on the basis of custom and usage, like hundis, treasury bills, share warrants,

etc., provided they possess the features of negotiability. In the following sections,

we shall study about Promissory Notes (popularly called pronotes), Bills of

Exchange (popularly called bills), Cheques and Hundis (a popular indigenous

document prevalent in India), in detail.

i. Promissory Note

Suppose you take a loan of Rupees Five Thousand from your friend Ramesh.

You can make a document stating that you will pay the money to Ramesh or the

bearer on demand. Or you can mention in the document that you would like to

pay the amount after three months. This document, once signed by you, duly

stamped and handed over to Ramesh, becomes a negotiable instrument. Now

Ramesh can personally present it before you for payment or give this document

to some other person to collect money on his behalf. He can endorse it in

somebody else’s name who in turn can endorse it further till the final payment is

made by you to whosoever presents it before you. This type of a document is

called a Promissory Note.

Section 4 of the Negotiable Instruments Act, 1881 defines a promissory note

as ‘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’.

Illustration

A signs instrument in the following terms

(a) "I promise to pay B or order Rs. 500."

(b) " I acknowledge myself to be indebted to B in Rs. 1,000 to be paid on

demand, for value received."

(c) Mr. B, O U Rs. 1,000."

(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 1st

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.

Specimen of a Promissory Note

Rs. 10,000/- New Delhi

September 25, 2002

On demand, I promise to pay Ramesh, s/o RamLal of Meerut or order a

sum of Rs 10,000/- (Rupees Ten Thousand only), for value received.

To , Ramesh Sd/ Sanjeev

Address…….. Stamp

Parties to a Promissory Note

There are primarily two parties involved in a promissory note. They are

i. The Maker or Drawer – the person who makes the note and promises to

pay the amount stated therein. In the above specimen, Sanjeev is the maker or

drawer.

ii. The Payee – the person to whom the amount is payable. In the above

specimen it is Ramesh. In course of transfer of a promissory note by payee and

others, the parties involved may be -

a. The Endorser – the person who endorses the note in favour of another

person. In the above specimen if Ramesh endorses it in favour of Ranjan and

Ranjan also endorses it in favour of Puneet, then Ramesh and Ranjan both are

endorsers.

b. The Endorsee – the person in whose favour the note is negotiated by

endorsement. In the above, it is Ranjan and then Puneet.

(Endorsement means transfer of any document or instrument to another person

by signing on its back or face or on a slip of paper attached to it)

Features of a promissory note

Let us know the features of a promissory note.

i. A promissory note must be in writing, duly signed by its maker and properly

stamped as per Indian Stamp Act.

ii. It must contain an undertaking or promise to pay. Mere acknowledgement of

indebtedness is not enough. For example, if someone writes ‘I owe Rs. 5000/- to

Satya Prakash’, it is not a promissory note.

iii. The promise to pay must not be conditional. For example, if it is written ‘I

promise to pay Suresh Rs 5,000/- after my sister’s marriage’, is not a promissory

note.

iv. It must contain a promise to pay money only. For example, if someone writes

‘I promise to give Suresh a Maruti car’ it is not a promissory note.

v. The parties to a promissory note, i.e. the maker and the payee must be

certain.

vi. A promissory note may be payable on demand or after a certain date. For

example, if it is written ‘three months after date I promise to pay Satinder or order

a sum of rupees Five Thousand only’ it is a promissory note.

vii. The sum payable mentioned must be certain or capable of being made

certain. It means that the sum payable may be in figures or may be such that it

can be calculated.

(See specimen below).


November 14, 2002

I, Ramesh , s/o Sadanand of Surat, Gujarat promise to pay Sashikant, s/o Sunil

Kumar of Ahmedabad, Gujarat or order, on demand, the sum of Rs 10,000/- (Rupees

Ten Thousand only) with interest at the rate of 10 percent per annum, for value

received.

Sd/- Ramesh

Stamp

To

Sashikant

Ahmedabad, Gujarat

ii. Bill of Exchange

Suppose Rajiv has given a loan of Rupees Ten Thousand to Sameer, which

Sameer has to return. Now, Rajiv also has to give some money to Tarun. In this

case, Rajiv can make a document directing Sameer to make payment up to

Rupees Ten Thousand to Tarun on demand or after expiry of a specified period.

This document is called a Bill of Exchange, which can be transferred to some

other person’s name by Tarun.

Section 5 of the Negotiable Instruments Act, 1881 defines a bill of exchange

as ‘an instrument in writing containing an unconditional order, signed by the

maker, 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’.

Specimen of a Bill of Exchange


May 2,2001

Five months after date pay Tarun or (to his) order the sum of Rupees Ten

Thousand only for value received.

To Accepted Stamp

Sameer Sameer S/d

Address Rajiv

Parties to a Bill of Exchange

There are three parties involved in a bill of exchange. They are

i. The Drawer – The person who makes the order for making payment. In

the above specimen, Rajiv is the drawer.

ii. The Drawee – The person to whom the order to pay is made. He is

generally a debtor of the drawer. It is Sameer in this case.

iii. The Payee – The person to whom the payment is to be made. In this

case it is Tarun.

The drawer can also draw a bill in his own name thereby he himself becomes the

payee. Here the words in the bill would be Pay to us or order. In a bill where a

time period is mentioned, just like the above specimen, is called a Time Bill. But

a bill may be made payable on demand also. This is called a Demand Bill.

Features of a bill of exchange

Let us know the various features of a bill of exchange.

i. A bill must be in writing, duly signed by its drawer, accepted by its drawee and

properly stamped as per Indian Stamp Act.

ii. It must contain an order to pay. Words like ‘please pay Rs 5,000/- on demand

and oblige’ are not used.

iii. The order must be unconditional.

iv. The order must be to pay money and money alone.

v. The sum payable mentioned must be certain or capable of being made certain.

vi. The parties to a bill must be certain.

iii. Cheques

Cheque is a very common form of negotiable instrument. If you have a savings

bank account or current account in a bank, you can issue a cheque in your own

name or in favour of others, thereby directing the bank to pay the specified

amount to the person named in the cheque. Therefore, a cheque may be

regarded as a bill of exchange; the only difference is that the bank is always the

drawee in case of a cheque.

The Negotiable Instruments Act, 1881 defines a cheque as a bill of exchange

drawn on a specified banker and not expressed to be payable otherwise than on

demand. Actually, a cheque is an order by the account holder of the bank

directing his banker to pay on demand, the specified amount, to or to the order of

the person named therein or to the bearer.

Specimen of a Cheque

………......20.......

Pay……..............................................................................................................

……....................................................................................................... or

Bearer

Rupees………………………………………………

……………………………………………………

STATE BANK OF INDIA

Jawaharlal Nehru University, New Delhi – 110067

MSBL 6 5 3 0 0 3 1 1 0 0 0 2 0 5 6

1 0

Features of a cheque

Let us look into some important features of a cheque.

i. A cheque must be in writing and duly signed by the drawer.

ii. It contains an unconditional order.

iii. It is issued on a specified banker only.

iv. The amount specified is always certain and must be clearly mentioned both in

figures and words.

v. The payee is always certain.

vi. It is always payable on demand.

vii. The cheque must bear a date otherwise it is invalid and shall not be honoured

by the bank.

Types of Cheque

Broadly speaking, cheques are of four types.

a) Open cheque, and

b) Crossed cheque.

c) Bearer cheque

d) Order cheque

Let us know details about these cheques.

a) Open cheque: A cheque is called ‘Open’ when it is possible to get cash over

the counter at the bank. The holder of an open cheque can do the following:

i. Receive its payment over the counter at the bank,

ii. Deposit the cheque in his own account

iii. Pass it to someone else by signing on the back of a cheque.

b) Crossed cheque: Since open cheque is subject to risk of theft, it is dangerous

to issue such cheques. This risk can be avoided by issuing other types of cheque

called ‘Crossed cheque’. The payment of such cheque is not made over the

counter at the bank. It is only credited to the bank account of the payee. A

cheque can be crossed by drawing two transverse parallel lines across the

cheque, with or without the writing ‘Account payee’ or ‘Not Negotiable’.

c) Bearer cheque: A cheque which is payable to any person who presents it for

payment at the bank counter is called ‘Bearer cheque’. A bearer cheque can be

transferred by mere delivery and requires no endorsement.

d) Order cheque: An order cheque is one which is payable to a particular

person. In such a cheque the word ‘bearer’ may be cut out or cancelled and the

word ‘order’ may be written. The payee can transfer an order cheque to someone

else by signing his or her name on the back of it.

There is another categorization of cheques which is discussed below:

Ante-dated cheques:- Cheque in which the drawer mentions the date earlier to

the date of presenting if for payment. For example, a cheque issued on 20th May

2003 may bear a date 5th May 2003.

Stale Cheque:- A cheque which is issued today must be presented before at

bank for payment within a stipulated period. After expiry of that period, no

payment will be made and it is then called ‘stale cheque’. Find out from your

nearest bank about the validity period of a cheque.

Mutilated Cheque:- In case a cheque is torn into two or more pieces and

presented for payment, such a cheque is called a mutilated cheque. The bank

will not make payment against such a cheque without getting confirmation of the

drawer. But if a cheque is torn at the corners and no material fact is erased or

cancelled, the bank may make payment against such a cheque.

Post-dated Cheque:- Cheque on which drawer mentions a date which is

subsequent to the date on which it is presented, is called post-dated cheque. For

example, if a cheque presented on 8th May 2003 bears a date of 25th May 2003,

it is a post-dated cheque. The bank will make payment only on or after 25th May

2003.

iv. Hundis

A Hundi is a negotiable instrument by usage. It is often in the form of a bill of

exchange drawn in any local language in accordance with the custom of the

place. Sometimes it can also be in the form of a promissory note. A hundi is the

oldest known instrument used for the purpose of transfer of money without its

actual physical movement. The provisions of the Negotiable Instruments Act shall

apply to hundis only when there is no customary rule known to the people.

Types of Hundis

There are a variety of hundis used in our country. Let us discuss some of the

most common ones.

1. Shah-jog Hundi: This is drawn by one merchant on another, asking the latter

to pay the amount to a Shah. Shah is a respectable and responsible person, a

man of worth and known in the bazaar. A shah-jog hundi passes from one hand

to another till it reaches a Shah, who, after reasonable enquiries, presents it to

the drawee for acceptance of the payment.

2. Darshani Hundi: This is a hundi payable at sight. It must be presented for

payment within a reasonable time after its receipt by the holder. Thus, it is similar

to a demand bill.

3. Muddati Hundi: A muddati or miadi hundi is payable after a specified period

of time. This is similar to a time bill.

There are few other varieties like Nam-jog hundi, Dhani-jog hundi, Jawabee

hundi, Jokhami hundi, Firman-jog hundi, etc.

4. A. Differences between Bill of Exchange & Promissory Notes

Promissory Note Bill of Exchange

1. It contains an unconditional

promise.

1. It contains an unconditional order.

2. There are 2 parties – the maker &

the payee.

2. There are 3 parties – the drawer,

the drawee & the payee.

3. It is made by the debtor. 3. It is made by the creditor.

4. Acceptance is not required. 4. Acceptance by the drawee is a

must.

5. The liability of the maker/drawer

is primary & absolute.

5. The liability of the maker/drawer

is secondary & conditional upon

non-payment by the drawee.

B. Distinction between a Cheque and a Bill of Exchange

Cheque Bill of Exchange

1. It is drawn only on a banker. 1. It can be drawn on anybody

including a banker.

2. The amount is always payable on

demand.

2. The amount is payable on demand

or after a specified period.

3. It can be crossed to end its

negotiability.

3. It cannot be crossed.

4. Acceptance is not required. 4. Acceptance is a must.

5.Features of Negotiable Instruments

After discussing the various types of negotiable instruments let us sum up their

features as under

i. A negotiable instrument is freely transferable. Usually, when we transfer

any property to somebody, we are required to make a transfer deed, get it

registered, pay stamp duty, etc. But, such formalities are not required while

transferring a negotiable instrument. The ownership is changed by mere delivery

(when payable to the bearer) or by valid endorsement and delivery (when

payable to order). Further, while transferring it is also not required to give a

notice to the previous holder.

ii. Negotiability confers absolute and good title on the transferee. It means

that a person who receives a negotiable instrument has a clear and undisputable

title to the instrument. However, the title of the receiver will be absolute, only if he

has got the instrument in good faith and for a consideration. Also the receiver

should have no knowledge of the previous holder having any defect in his title.

Such a person is known as holder in due course. For example, suppose Rajiv

issued a bearer cheque payable to Sanjay. It was stolen from Sanjay by a

person, who passed it on to Girish. If Girish received it in good faith and for value

and without knowledge of cheque having been stolen, he will be entitled to

receive the amount of the cheque. Here Girish will be regarded as ‘holder in due

course’.

iii. A negotiable instrument must be in writing. This includes handwriting,

typing, computer printout and engraving, etc.

iv. In every negotiable instrument there must be an unconditional order or

promise for payment.

v. The instrument must involve payment of a certain sum of money only and

nothing else. For example, one cannot make a promissory note on assets,

securities, or goods.

vi. The time of payment must be certain. It means that the instrument must be

payable at a time which is certain to arrive. If the time is mentioned as ‘when

convenient’ it is not a negotiable instrument. However, if the time of payment is

linked to the death of a person, it is nevertheless a negotiable instrument as

death is certain, though the time thereof is not.

vii. The payee must be a certain person. It means that the person in whose

favour the instrument is made must be named or described with reasonable

certainty. The term ‘person’ includes individual, body corporate, trade unions,

even secretary, director or chairman of an institution. The payee can also be

more than one person.

viii. A negotiable instrument must bear the signature of its maker. Without the

signature of the drawer or the maker, the instrument shall not be a valid one.

ix. Delivery of the instrument is essential. Any negotiable instrument like a

cheque or a promissory note is not complete till it is delivered to its payee. For

example, you may issue a cheque in your brother’s name but it is not a

negotiable instrument till it is given to your brother.

x. Stamping of Bills of Exchange and Promissory Notes is mandatory. This

is required as per the Indian Stamp Act, 1899. The value of stamp depends upon

the value of the pronote or bill and the time of their payment.

6. Negotiation of Commercial Paper

Assignment

Negotiation

Endorsements

Four Common Types of Endorsements

Assignment Commercial paper that does not meet all of the requirements of

negotiability cannot be negotiated. It can only be transferred by assignment,

which is governed by the ordinary principles of contract law.

Negotiation Negotiation is the transfer of an instrument in such a form that the

transferee becomes a holder. A holder is a person who is in possession of an

instrument issued or indorsed to that person, to that person's order, to bearer, or

in blank.

Endorsements An instrument is endorsed when the holder signs it, thereby

indicating the intent to transfer ownership to another. Endorsements may be

written in ink, typewritten, or stamped with a rubber stamp.

Blank Endorsements: A blank endorsement consists of the signature alone

written on the instrument.

•Special Endorsements: A special endorsement is made by writing the words

pay to the order of or pay to followed by the name of the person to whom it is to

be transferred and the signature of the endorser.

•Restrictive Endorsements: A restrictive endorsement limits the rights of the

endorsee in some manner in order to protect the rights of the endorser. An

endorsement is restrictive if it is conditional.

•Conditional Endorsement: A conditional endorsement, a type of restrictive

endorsement, makes the rights of the endorsee subject to the happening of a

certain event or condition.

•Qualified Endorsements: A qualified endorsement is one in which words have

been added to the signature that limit the liability of the endorser.

7. Exceptions

Under the Code, the following are not negotiable instruments, although the law

governing obligations with respect to such items may be similar to or derived

from the law applicable to negotiable instruments.

1. Letters of Credit, which are governed by Article 5 of the Code.

2. Bills of Lading and other documents of title, which are governed by Article

7 of the Code.

3. Securities, such as Stocks & Bonds, which are governed by Article 8 of the

Code.

4. Deeds & other documents conveying interests in real estate, although a

mortgage may secure a promissory note which is governed by Article 3.

5. IOUs. relating to netting practices and domestic payments and settlement

systems.

8. E- Transfers

Electronic Funds Transfer Act

In 1995, the Reserve Bank had set up the Committee for Proposing Legislation

on Electronic Funds Transfer and other Electronic Payments (Chairperson : Smt.

K.S.Shere). The Shere Committee had recommended a set of EFT Regulations

by the Reserve Bank under the Reserve Bank of India Act,1934 and amendment

to the Bankers’ Books Evidence Act,1881 as short term measures and promotion

of a few Acts like the Electronic Funds Transfer Act, the Computer Misuse and

Data Protection Act etc. as long term measures. The Reserve Bank has already

initiated steps for framing of EFT Regulations. The Government of India have

also initiated steps for promoting Information and Technology Act, 1999 and

consequential amendments to the Reserve Bank of India Act, 1934, the Bankers’

Books Evidence Act, 1881 etc.

The proposed Information Technology Bill, 1999 and Electronic Commerce Bill,

1999 are intended to be general purpose legislation covering mainly issues like

secure electronic records and signatures, acceptance of digital signatures, duties

of certification authority, liability of network service providers, computer crime and

data protection. Both the bills deal with electronic contracts and they are being

promoted by the Government of India primarily to facilitate introduction of

Electronic Data Interchange in the commercial sector. However, they are equally

applicable for electronic funds transfer already launched by the Reserve Bank

and is going to be increasingly resorted to by the user banks of the VSAT based

network, the INFINET. However, there is still a need for a separate Act for

Electronic Funds Transfer because certain transactional issues like payments

finality, rights and obligations of the parties involved in electronic funds transfer

etc. cannot be covered in general purpose bills like the proposed Information

Technology Bill or the proposed Electronic Commerce Bill. The EFT Regulations

being framed by the Reserve Bank would address only the specific type of EFT

system that the Reserve Bank would be involved with as a service provider as

also a regulator. The EFT Regulations would, moreover, cover only credit

transfer related transactions and not Debit Clearing transactions. A separate

legislation on the lines of Electronic Funds Transfer Act of USA is, therefore,

required which would be consumer protection oriented and would at the same

time address transactional issues like execution of payment order, settlement

finality, etc.

The Reserve Bank has taken the help of a consultant in drafting a new

legislation on Electronic Funds Transfer System and proposing amendment to

the Reserve Bank of India Act 1934. The Committee, after a careful examination

of the issue, has endorsed the view that the proposed Electronic Funds Transfer

Act should cover all forms of electronic payments. The Committee supports the

view that the Reserve Bank, at an appropriate time, considers operating the inter-

bank payment systems through an agency or subsidiary so that its regulatory role

is rendered distinct from its supervisory role. Retail payment systems such as the

ECS and the EFT Remittance Processing Scheme presently operational may be

managed by a group of large banks with country wide branch network and

technical capability, with settlement assistance from the Reserve Bank. This

would help the RBI to focus its efforts only on large value time critical funds

transfers to be settled on an RTGS basis. In the ongoing debate on the role of

central bank in payment systems, the trend is towards distinguishing the central

bank role as a regulator from that of service providers which could be commercial

banks themselves or the entities under the control of commercial banks. The

Committee has considered it necessary that the legal framework for payment

system takes into account this international trend.

Admission of electronic files as evidence and preservation of records:

The Shere Committee had discussed the issues of admitting electronic files as

evidence and of preserving electronic records and recommended the need to

amend the Bankers' Books Evidence Act, 1881 on the lines of the Customs and

Central Excise Laws (Amendment) Act, 1988 and Central Excise and Salt Act,

1944 for the purpose. It is learnt that Government of India is processing the draft

Bill amending the Bankers’ Books Evidence Act, 1881. This is a welcome

development and would meet the legal requirement of acceptance of contracts,

documents etc. in electronic form as evidence.

The Committee considered certain provisions of the proposed Electronic

Commerce Bill for admitting electronic records / signatures as evidence. Clauses

9, 10, 11, 12 and 14 of this proposed Bill which are relevant in this connection

are given in Annexure 16 . It is worth mentioning that while clauses 9, 10 and 11

of this Bill are based on the UNCITRAL Model Law, clauses 12 and 14 are based

on Singapore Electronic Transactions Act. As and when the Electronic

Commerce Bill is passed, these provisions will be made applicable, ipso facto, to

electronic funds transfer transactions as well.

Funds Transfer through EFT Systems from Tax Compliance Angle

The Shere Committee had recommended that the Central Board of Direct Taxes

(CBDT) may be requested to take up the question of clarifying and, if required,

amending the relative provisions of the Direct Tax Laws like Section 40A of the

Income-Tax Act, 1961. The Committee however felt that, for according the funds

transfer under the EFT system the same status of payment as one made by an

A/c payee cheque, suitable technology may have to be developed for treating

such transfers as A/c payee transfers. A mere recognition to that effect by the

CBDT may not be adequate to treat such transfer as A/c payee cheques. Legal

provisions need to be made if such recognition has to be given. The first test

would arise when paper instruments like cheques are used along with the use of

EFT system. So long as both the systems are in existence at the same time, it

would require either amendments to the Negotiable Instruments Act or a

separate legislation to deal with the matter.

Cheque Truncation

Cheque Truncation is a method of payment processing where under movement

of the paper instrument is truncated by substituting with electronic transmission

of the cheque details or data. The Shere Committee had examined the legal

issues pertaining to cheque truncation and had indicated that the definition of

presentment in the Negotiable Instruments Act may have to be amended for

adoption of cheque truncation system in India. Under the Negotiable Instruments

Act, 1881, cheques would have to be presented for payment to drawee / drawer

bank. Without such presentment, no cause of action arises against the drawer. In

default of presentment of a cheque to the drawee for payment, other parties to

the cheque are not liable to the holder. It is by banking practice and under the

Uniform Rules and Regulations for Clearing Houses that banks have agreed for

presentment at any place other than the branch, such as the clearing house.

Besides, the implications of the definition of payment in due course under the

Negotiable Instruments Act, 1881 may make it difficult for banks to introduce

cheque truncation system simply by agreement among themselves. The right of

the paying bank to require physical presentation and possession of the cheque

are designed to provide the bank with an opportunity to examine the signature

and other authentication of the cheque. This is meant essentially to protect the

interest of the drawer. Therefore, in UK, the cheque truncation system started

with customer consent agreements and was eventually introduced after a fair

degree of familiarization with imaging technology by the banks. Thus,

introduction of cheque truncation system may require adoption of a fairly

standardized imaging technology and appropriate amendments to the Negotiable

Instruments Act, 1881.

9. Section 134 to 137 is of an International Law and

the said 4 sections read as follows:

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 [India], and is dishonoured. An action on the bill

is brought against B in [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 per

cent.

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 [India], but accepted payable in

France, is dishonoured. The endorsee causes 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 not

foreign. The notice is sufficient.

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 [outside India],

but in accordance with the [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 [within India].

137. Presumption as to Foreign Law.

The law of any foreign country [***] regarding promissory note, bills of exchange

and cheques shall be presumed to be the same as that of [India], unless and until

the contrary is proved.

10 Dishonor Of Negotiable Instruments

Complaints of cheque :

To answer in nutshell, a person desirous to initiate action under section 138 of

Negotiable Instruments Act ("Complainant"), should ensure following:

-The instrument is a cheque (and not any other instrument like bill of exchange or

promissory note)

-Complainant is a payee or holder in due course of a returned cheque

-The cheque should have been in discharge of debt or liability (and not gift etc)

-The cheque should have returned for reasons "want of funds", “a/c closed” or

“stopped payment”

-Complainant should make out a prima facie case. Thereafter, the accused has

to prove absence of consideration

-Complainant should issue a demand notice within 30 days from the

Complainant's receiving information of return. the notice need not be received by

the accused (i.e. drawer of the cheque) within 30 days

-It is advisable to give demand notice only once by a single mode, say registered

ad letter

-Demand notice may cover more than one returned cheque

-Demand notice should demand the drawer to pay within 15 days from its receipt

by the drawer of the cheque

-Advisable to gather the date and evidence of receipt of demand notice by the

drawer of the cheque

-Cause of action arises on 16th day when the drawer of the cheque doesn't pay

within 15 days from the Drawer’s receiving or refusing demand notice

-Cause of action arises only once, though there can be several returns. Hence

advisable to give notice only when it is decided to file a complaint

-Complaint should be filed within 30 days from 16th day from the date of receipt

by Drawer of the Demand Notice

-If the last day of limitation for filing a complaint is a holiday, may file it on the

next working day. Courts not allowed to condone delay in filing a complaint and

hence timing should be adhered to

-Complaint is maintainable against all the partners for a cheque return of their

firm

-In case of a company, managing director/ deputy managing director’s liability is

assumed while as regards other directors etc it is necessary that such person

was in charge of and responsible for the conduct of business of the company and

this is specifically averred in the complaint

-It is not necessary to make the company or the firm a party to the complaint

-Complaint runs independent of any other proceeding

-Complaint is not maintainable against legal heirs of the Drawer.

BILLS OF EXCHANGE

Dishonor of the bill: when the bill of exchange is not accepted or not paid on

maturity the bill is said to have been dishonored. From the above it is clear that

the bill is dishonored on two accounts:

a. Dishonor by non-acceptance

b. Dishonor by non-payment

Dishonor by non-acceptance: when the drawee refuses to accept the bill, it

stands to be dishonored. The dishonor by-non-acceptance may have the

following reasons:

1. The drawee doesn’t accept the bill within 24 hours of its receipt.

2. When the drawee is not entitled to accept it.

3. When the drawee is a fake person.

4. If the bill is to be conditionally accepted

5. When the drawee disappears.

6. In case there are many drawees, and all the drawees do not sign the bill.

Dishonor by Non-Payment: Another reason for the dishonor of a bill is its non-

payment at maturity the drawee may refuse to make the payment of the bill when

it is presented at maturity, this refusal gives rise to dishonor by nonpayment.

The dishonor affects all the parties to the bill. They include the drawer, all

endorse and endorse, who are all accountable and liable to the holder.

11. Negotiable instruments connects global

peace

A global world means different people, different culture, different opinions,

different understanding and different laws in every country. When trade of goods

and services started, problems also started taking up their roles. The cases of

payment problems were observed among the exporting parties. Since the laws of

different differ from each other, these matters could not be solved legally and the

distance between each country made it even more uncomfortable. The ups and

downs in the foreign exchange of every country were making them go through

stagnancy. A certain kind of negotiation was required at an international level to

make the road of trade go smooth. There was indeed a need for a negotiable

instrument which is accepted by every law internationally.

Taking these factors into consideration The Negotiable Instrument Act was

passed. Negotiable instrument include promissory notes, Bills of exchange and

Cheque. These instruments had conditional and unconditional undertakings

signed by the maker. These instruments are internationally accepted. It helped

many countries who were going through foreign exchange deficit.

Negotiable instrument helped exporters and importers of goods and

services to drag their defaulters to court.

A smooth flow of trade was observed after the introduction of negotiable

instruments.

Exporters of goods and services felt a sigh of relief when they export their

goods and services on credit basis as they had the negotiable instrument

with them dually signed by both the parties i.e. drawer and the drawee

which was a strong proof document.

Negotiable instruments play a vital role in the economic development of every

country with its significant features. One of the main features includes that

Negotiable instruments are freely transferable and while transferring it is also not

required to give a notice to the previous holder. Negotiable instrument is always

in writing so there is no fear of the drawee backing off the instrument. Whereas

stamping of bills of exchange and promissory notes are mandatory.

The peace and harmony which we see today in regards to the wholesome

trade which goes on a very big scale and which is rising every single day is

because of the existing negotiable instruments which are accepted internationally

by every individual. The complaints regarding negotiable instruments should be

filed as early as possible in there nearby allocated court. So it helps the

complainant to get its judgment at the earliest. The grievances regarding the

negotiable instruments are taken at the top priority as it directly affects the

economy of the country. Each country is trying hard to do the necessary

amendments for making these negotiable instruments run more smoother and

efficiently so that the growing economy grows with more pace and peace.

12. Case studies

THE JVG SCANDALJVG's troubles started in June 1997, after the Securities and Exchange

Board of India (SEBI) asked JVG Finance to refund the Rs 45 crore it had

raised from a public issue in March 1997. A day after the issue had

opened, RBI issued a show-cause notice asking why JVG Finance should

not be barred from accepting deposits as the group companies had

already exceeded their deposit limits. By the time RBI conditionally cleared

the issue after assurances from Sharma, the 70-day stipulated period for

listing the shares had passed. Because of the time-lapse, SEBI intervened

and ordered the refund of the public's money according to the allotment

rules. Sharma refused to refund the money to the investors and appealed

against the order to the Finance ministry.

He admitted that JVG had exceeded its limits while accepting deposits

but claimed that since December 1996 (much before the RBI ban) it had

stopped accepting deposits on its own and had even given RBI an

undertaking. RBI did not accept the argument and barred the group from

accepting any more public deposits. In September 1997, post-dated

cheques issued for principal as well as interest on JVG's deposits

bounced. Investors then complained to the civil courts, consumer courts,

Company Law Board and criminal courts under the Negotiable Instruments

Act upon which legal proceedings were initiated against the group. The

government received a large number of complaints on non-repayment of

deposits on maturity by the JVG group.

On a complaint filed by the RBI, the Delhi High Court ordered the winding

up of the company. The court also appointed an official liquidator and said

that the RBI did not consider the revival scheme filed by the company

viable. The RBI also filed criminal prosecution petitions in the Metropolitan

Magistrates' Courts in New Delhi.

RBI alleged that the company had accepted deposits worth Rs 88.82 crore

which was 756.68% of its net owned fund. This was much higher than the

permissible limit of 25% [1]. Similarly, JVG Leasing had received deposits

worth Rs 19.28 crore which was 147.58% of its net owned fund. The RBI

complaint also said that the deposit forms issued by the JVG Group did not

contain any information regarding premature withdrawals, which was

necessary as per RBI provisions. The companies had not provided any

information about the rate of interest to the investors on the receipts issued

to them. Further, the companies failed to submit their audited balance

sheets for the period ending March 31, 1994 and 1995 15 days after their

annual general meeting (AGM) and did not inform the RBI about the

changes in the composition of the board of directors.

RBI's petition also stated that the company had not maintained liquid

assets as required by section 45IB of the RBI Act, 1934. RBI further

contended that JVG Securities accepted public deposits through JVG

Leasing Ltd. and had illegally credited it to the account of JVG Finance Ltd.

Thus, JVG Securities facilitated collection of further deposits by JVG

Finance Ltd., a company which had already accepted public deposits

beyond the permissible limit in spite of the warning from RBI not to accept

any further deposits.

Advocate arrested in credit card fraud case Lawyers, police on warpath

Tribune News Service

Ludhiana, April 28The local police and the lawyers are heading for a showdown over the issue of arrest of an advocate by the Division No 8 police in an alleged credit card fraud case.

A verbal spat took place between a group of local lawyers and city policemen at the Division No 8 police station when the policemen were giving details about a credit card fraud allegedly committed by a city-based advocate, a pickpocket and a former employee of a private telephone company.

The police was claiming that it had arrested advocate Amarjit Singh of Fauji Mohalla here on the basis of evidence along with Vikas, former employee of a telephone company, for doing shopping worth over Rs 4 lakh from a stolen credit card of an NRI. The third accused was Sonu, an alleged pickpocket, who had stolen the credit card. He was missing.

The credit card was stolen six months ago in November 2004 from GRD Academy here where the Miss World Punjaban contest was being held. The alleged victim, NRI Jaswinder Singh, was watching the show when his pocket was picked.

However, a group of lawyers led by a former president of the District Bar Association, Mr. Harish Rai Dhanda, openly charged the police with falsely implicating the accused advocate. They also alleged that some policemen had demanded money from the advocate but when he refused to pay, he was booked in a false case. The police have denied the allegations.

DSP Simratpal Singh Dhindsa stated at a press conference that the accused had indulged in shopping using the stolen credit card from showrooms of Adidas, Nike, Weekender, Tanishq, Titan and Sant Ram Mangat Ram.

The police narrowed down on the accused after the complainant learnt that the credit card was being misused.

However, Mr. Dhanda alleged that the lawyer was innocent and had been falsely implicated in the case. He said the lawyer was tortured in police custody. A group

of lawyers later filed a complaint before a local Judge against police torture and harassment.

Meanwhile, taking a tough stand against the arrest and the alleged custodial torture of the advocate, the District Bar Association (DBA) has demanded immediate suspension of the guilty policemen.

Mr. Rana Harjasdeep Singh, Secretary, DBA, said in a statement that they had got the medical examination of the accused advocate conducted from the Civil Hospital. A delegation of the DBA would meet the SSP tomorrow and demand action against the SHO and other policemen of the Division No 8 police station.

Former DBA president K.R. Sikri condemned the incident and termed it as breach of trust and of an understanding reached between the lawyers and a former DGP, Dr A A Siddiqui, last year that the police would take the DBA into confidence before arresting an advocate in any case, except a rape or a murder case.

13. FRAUD

Within this specification by a negotiable instrument is meant a

cheque, a credit card, a debit card, a bond, a share certificate, an account

card, a traveler’s cheque, an electronic transfer, and any other instrument

that has inherent value to the owner thereof and in relation to which the

owner can suffer a financial loss as a result of unauthorized and/or

fraudulent dealing therewith by third parties.

Fraud in relation to the use of negotiable instruments is an international

problem. Many different forms of fraud that can result in the owner of a

negotiable instrument suffering a financial loss are known, with the

common element generally being that the negotiable instrument is

presented for serving as a payment for goods purchased, for converting its

value into cash, or for depositing its value into a third party account,

without authorization of the original owner or in a form in which it has been

fraudulently tampered with to the detriment of the original owner.

Although the invention as defined and described hereafter is directed

mainly at inhibiting fraud in relation to the use of cheques and credit

cards, it must be understood that the invention applies also to inhibiting

of fraud in relation to the use of any other negotiable instrument and the

features of the invention must be interpreted as such.

For the sake of convenience and clarity, the original owner of a negotiable

instrument as herein envisaged shall merely be referred to as the owner of

the negotiable instrument who, in relation to certain negotiable

instruments such as cheques, promissory notes, and the like, will be the

person issuing such instruments, and in relation to other negotiable

instruments such as credit cards, will be the person who legally presents

such instruments in order to serve their intended purpose. The owner is

thus generally the person, whether a natural or a juristic person, who can

suffer a loss as a result of the unauthorized or fraudulent use of the

negotiable instrument of which he is the owner.

The person or body to whom a negotiable instrument is presented shall

hereinafter be referred to as the presentee who, for example, in relation

to cheques, and the like, generally will be a bank and particularly an

employee of a bank, and in relation to credit cards, generally will be a

vendor who accepts the use of a credit card as payment for goods

purchased or for services rendered. The presentee also is the party who,

in accordance with the present invention, is generally responsible for

ensuring that the owner of the negotiable instrument is not prejudiced.

The person presenting a negotiable instrument to the presentee shall

hereinafter merely be referred to as the presentor and, in practice, this

may be a legitimate person to whom the instrument has been issued or

who owns the instrument, or an illegitimate person who may be attempting

a fraudulent act and/or who is not authorized to present the instrument.

It will be appreciated that the various negotiable instruments as herein

envisaged can be associated with various different `types` of presenters

and presentees. Presentees need not necessarily be banks or vendors,

but may be any third party who generally deals with and/or who is

responsible for dealing with, such instruments.

The application of the system for inhibiting fraud in relation to the use

of negotiable instruments is associated with a suitably programmed central

communication and processing unit that can be communicated with via a

direct telephone line, via the internet, or the like. This unit shall

herein be referred to as a central communication and processing unit and

any reference to this unit must be interpreted as a reference to a

suitably programmed unit that includes means for communicating with the

unit, as well as data processing means and data storage means that

permit processing of stored data and of data communicated to it, for

enabling the system of the invention as defined hereafter.

BRIEF SUMMARY OF THE INVENTION

According to the invention there is provided a system for inhibiting fraud

in relation to the use of negotiable instruments, which includes the steps

of:

the owners of negotiable instruments communicating with a central

communication and processing unit in order to register with the unit by

providing information, including at least identification numbers, linked

directly with the respective owners and information linked directly with

the negotiable instruments in respect of which fraud is to be inhibited,

each owner then being provided with an individual secret code by the unit;

and the presentees of negotiable instruments communicating with the

central communication and processing unit in order to register with the unit

by providing information, including at least identification numbers, linked

directly with the respective presentees, each presentee then being

provided with an individual secret code by the unit, and which includes,

in relation to each negotiable instrument to be issued or used by a

registered owner, the steps of:

the registered owner communicating with the central communication and

processing unit in order to authorize the negotiable instrument, by

identification via the identification number and the individual secret

code linked with the owner and by providing sufficient details in respect

of the negotiable instrument for subsequently permitting the instrument to

be verified, the unit then issuing an authorization code to be linked with

the instrument; and upon presentation of the authorized negotiable

instrument by a presentor to a presentee, the presentee communicating

http://www.patentstorm.us/patents/6783062/description.html

with the central communication and processing unit in order to verify the

negotiable instrument, by identification via the individual secret code linked

with the presentee and providing the authorization code linked with the

instrument, the unit in response communicating to the presentee the

details for verifying the instrument provided by the owner of the instrument

and thereby permitting the presentee to verify the instrument as the

instrument authorized by the owner.

The system of the invention particularly may provide for the central

communication and processing unit to permit communication via a direct

telephone line and, as such, includes an audio text electronic processing

system that permits verbal information to be converted into binary code,

and a processing and memory system linked to the audio text electronic

processing system for processing information received by the audio text

electronic processing system and thereby carrying out the functions of the

unit. Alternatively, or in addition, the central communication and

processing unit may permit communication via the internet and, as such,

may include a processing and memory system for receiving and

processing information received via the internet and thereby carrying out

the functions of the unit.

Presentees registering with the unit also will provide the unit with any

other information, including at least their names, that will subsequently

permit the unit to identify a particular presentee that dealt with the

verification of a particular negotiable instrument.

Owners registering with the unit, insofar as the owners are natural

persons, may provide at least their names and their official identity

numbers. Insofar as owners are juristic persons such as registered

businesses, upon registering with the unit they will provide at least their

names and their official registration numbers.

The system of the invention may provide for owners registering with the

unit, insofar as they wish to use the system for inhibiting fraud in

respect of negotiable instruments such as cheques rendered payable via

their bank accounts, to provide the unit with the name of each relevant

bank, the branch code associated with the said relevant bank and the

relevant bank account number.

Insofar as owners registering with the unit wish to use the system for

inhibiting fraud in respect of negotiable instruments such as credit cards

issued to them by banks and linked to accounts, the system will provide

for such owners to provide the unit with the name of each relevant bank

and the card type, the number of each relevant card and the name of the

card owner that appears on the card.

Further according to the invention, the system may provide for the

registered owner of a cheque being issued by the owner, when authorizing

the cheque, to provide to the unit bank account details of the payee and

an identification number linked with the payee, the cheque number, the

amount indicated on the cheque and the name of the payee and, when

issued by the unit with an authorization code, to apply the code to the

cheque. In relation to an authorized cheque, the system may provide for

the presentee, upon being presented with an authorized cheque and in

order to verify the cheque, following the identification of the presentee to

the unit and the provision of the authorization code applied to the cheque,

for the unit to communicate to the presentee account details of a payee,

the identification number linked with a payee, a cheque number, an

amount and a payee name and if this information matches the information

applied to the cheque presented, to verify the cheque. Still further,

following verification of the cheque, the system may provide for the unit to

provide the presentee with a transaction code which must be applied by

the presentee to the cheque, the transaction code permitting details of

verification as stored by the unit to be retrieved from the unit.


The system of the invention may provide still further for the registered

owner of a credit card issued by a bank, upon authorizing a telephonic or

an online credit card transaction, for the owner to provide the unit with

the name of the bank that issued the card and the type of card, the card

number and the name of the card owner that appears on the card, and

when issued with an authorization code by the unit, to supply the code to

the vendor with whom the transaction is taking place to permit the vendor

as presentee to verify the credit card by communicating with the unit.

Still further according to the invention, the system may provide, when a

registered owner of a credit card issued by a bank presents as presentor

the card to a vendor as presentee, in order to perform a direct credit

card transaction, for the authorization and verification of the card to be

simultaneously performed by the presentee providing the unit with the

credit card number and the presentor providing the unit with the

individual secret code of the owner, in response to which the unit

provides the presentee a name of a bank that issued a card, a card

number and a name of a card owner and if this information matches the

information on the card as presented to the presentee, the card is both

authorized and verified thereby.

The invention extends also to a central communication and processing unit

which is controlled by a software program for enabling a system for

inhibiting fraud in relation to the use of negotiable instruments in

accordance with the invention. Still further, the invention extends to a

software program for controlling the operation of a central communication

and processing unit for enabling a system for inhibiting fraud in relation to

the use of negotiable instruments in accordance with the invention.

It must be appreciated that the system of the invention as above defined

may be applied specifically also to the authorization and verification of

negotiable instruments not particularly in the form of cheques or credit



cards, by applying the same principles to those applied when authorizing

and verifying cheques or credit cards, and the system of the invention as

defined must be interpreted as such.

Inspite of all the inventions made to stop fraudulent practices, the

fraud keeps taking place . Every day we read in the news paper how

a credit card is stolen and easily used for making purchases by the

thief without the knowledge of the real owner. Then when making

payments online by credit card so many times the credit card number

gets hacked and then used by the hacker for making online

purchases .By the time the owner realizes the thief gets away by

making big purchases.

New laws and ways are being adopted for stopping fraudulent

practices but the best and the only way it can be kept under control is

by the owner of these negotiable instruments himself. He should be

careful and take all necessary precautions while using these

negotiable instruments .When making online payments one should

make sure later by calling his bank customer care and confirming

that only the transaction made by him is showing .In the event of

misuse/theft, one should immediately report to the concerned

authorities for stopping payment from that account

PRECAUTIONS TO BE TAKEN TO AVOID FRAUD

1. Keep an eye on your credit card every time you use it, and make sure you get it back as quickly as possible. Try not to let your credit card out of your sight whenever possible.

2. Be very careful to whom you give your credit card. Don't give out your account number over the phone unless you initiate the call and you know the company is reputable. Never give your credit card info out when you receive a phone call. (For example, if you're told there has been a 'computer problem' and the caller needs you to verify information.) Legitimate companies don't call you to ask for a credit card number over the phone.

3. Never respond to emails that request you provide your credit card info via email -- and don't ever respond to emails that ask you to go to a website to verify personal (and credit card) information. These are called 'phishing' scams.

4. Never provide your credit card information on a website that is not a secure site.

5. Sign your credit cards as soon as you receive them.

6. Shred all credit card applications you receive.

7. Don't write your PIN number on your credit card -- or have it anywhere near your credit card (in the event that your wallet gets stolen).

8. Never leave your credit cards or receipts lying around.

9. Shield your credit card number so that others around you can't copy it or capture it on a cell phone or other camera.

10. Keep a list in a secure place with all of your account numbers and expiration dates, as well as the phone number and address of each bank that has issued you a credit card. Keep this list updated each time you get a new credit card.

11. Only carry around credit cards that you absolutely need. Don't carry around extra credit cards that you rarely use.

12. Open credit card bills promptly and make sure there are no bogus charges. Treat your credit card bill like your checking account -- reconcile it monthly. Save your receipts so you can compare them with your monthly bills.

13. If you find any charges that you don't have a receipt for -- or that you don't recognize -- report these charges promptly (and in writing) to the credit card issuer.

14. Always void and destroy incorrect receipts.

15. Shred anything with your credit card number written on it.

16. Never sign a blank credit card receipt. Carefully draw a line through blank portions of the receipt where additional charges could be fraudulently added.

17. Carbon paper is rarely used these days, but if there is a carbon that is used in a credit card transaction, destroy it immediately.

18. Never write your credit card account number in a public place (such as on a postcard or so that it shows through the envelope payment window).

19. Ideally, it's a good idea to carry your credit cards separately from your wallet -- perhaps in a zippered compartment or a small pouch.

20. Never lend a credit card to anyone else.

21. If you move, notify your credit card issuers in advance of your change of address.

14. PRESENT SCENARIO OF NEGOTIABLE

INSTRUMENTS

Legal issues relating to electronic transaction processing at banks are very

many and the need to address them by amending some of the existing Acts

and by promoting legislation in a few hitherto unexpected areas has assumed

critical urgency. Necessary legislative support is essential to protect the

interests as much of the customers as of the banks / branches in several

areas relating to electronic banking and payment systems. This is specially

required to establish the credibility of ECS and EFT schemes based on the

electronic message transfer. Since the Reserve Bank is embarking on large

electronic schemes such as the nationwide RTGS, it is time that efforts are

made to bring about necessary legislative framework that synchronizes and

synthesizes with the initiatives taken by the Government of India, Department

of Electronics for promotion of the Information Technology Bill, 1999 and / or

the Electronic Commerce Bill, 1999.

Need for Regulation / Legislation on Netting

There is a growing debate on the legality of netting in inter-bank funds transfer

transactions. This is more so in the case of large value transactions. The position

gets all the more complicated in the case of cross border netting arrangements.

In fact, the issue gained critical significance while examining the proposal for

setting up of a foreign exchange clearing and settlement system in India. The

basic issue in netting systems is that of the settlement risk and the systemic risks

borne by the participants if one or some of the participants fail to meet the

clearing liability. In case of funds transfers settled on a gross basis, the parties

involved are only two and principal risk if any, is only for the specific transaction.

But in multilateral netting systems where claims and obligations accumulate over

a period of time (called the clearing cycle), incoming and outgoing payments are

set off against each other. In case of failure of a party in meeting the clearing

liability, the methodology of identifying the counter-parties / counterparts and

determining the exposure level becomes difficult. Although netting system is in

vogue in India for all inter-bank clearings by way of procedural details embodied

in the Uniform Rules and Regulations for Clearing Houses, it is necessary that

the provisions are made statutory. There is a need to amend Section 58 of the

Reserve Bank of India Act, 1934 with a view to enabling RBI to frame specific

regulations

15. SUMMARY

The project on negotiable instruments starts with the evolution of trade and

commerce which in turn leads to the discovery of negotiable instruments. We as

a group working on this topic had curiosity on the need of negotiable instruments

in the market. Our research gave us an idea and an overview of the evolution of

trade and commerce as a whole which kept on developing and growing bigger.

We came across the different stages through which trade and commerce went:

1. PASTORAL STAGE where business was limited and survival by breeding

of animals was the main motto. The first stage had to do nothing with

money, people lived a nomadic life.

2. However man learned quickly to grow food for their own need which can

be termed as the AGRICULTURAL STAGE. The demand increased for

other commodities as well and thus BARTER SYSTEM was introduced.

This can be termed as the turning point of trade and commerce.

3. After this man never looked back. They started producing specialized

products which led to the introduction of HANDICRAFT STAGE.

4. Then came the era in which people started to think about development and

thus formed groups to protect their rights, this was known as the GUILD

STAGE.

5. Then came the stage where technology was introduced and business

forms became complex, this is where the necessity of introducing

negotiable instruments were felt.

This was known as the FACTORY STAGE

However it was noted that the growth was very slow and the system was very

complex. There were different instruments used to purchase different

commodities in different stages. The system of exchange was such that it led

to confusion and various complexities. To avoid such confusion and to

operate the business activities smoothly negotiable instruments were

introduced.

Now as we have come across the term negotiable instruments and why it was

evolved, lets now have a brief knowledge about negotiable instrument.

Negotiable instruments are particular type of documents used for making

payment in business transactions, the ownership of which can be freely

transferred from one person to another.

Types of Negotiable Instruments

- Promissory note

- Bill of exchange

- Cheque

- Hundi

1. Promissory note - An instrument in writing 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.

2. Bill of exchange - An instrument in writing containing an unconditional order,

signed by the maker, 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.

3. Cheque - It is an order by the account holder of the bank directing his banker

to pay on demand the specified amount, to or to the order of the person named

therein or to the

bearer.

4. Hundi - It is form of a bill of exchange drawn in any local language in

accordance with the custom of the place.

Features of negotiable instruments are-

1. Free transferability

2. Absolute & good title

3. Always in written form

4. Unconditional order or promise for payment

5. Certainty of payment

6. Payee

7. Signature of the maker

8. Delivery of the instrument

9. Stamping of BOE & Promissory notes mandatory

Negotiation of Commercial paper

1. Assignment

2. Negotiation

3. Endorsements

Exceptions

1. Letters of Credit – Article5

2. Bills of Lading and other documents of title –Article7

3. Securities –Article8

4. Deeds & other documents conveying interests in real estate –Article3

5. IOUs

BIBLOGRAPHY

1. damodaran.com

2. knowlegeworld.com

3. indialaw.com

4. casestudy.com

5. google.com

Negotiable instruments Act

Business

Transcript of Negotiable instruments Act