Today I am moving further and trying to convince you that Debt-Enforcement Laws of India are worse than Chinese laws
Yesterday I looked for any Supreme Court Judgement which says that Sec.138 of Negotiable Instrument Act is valid. I found none.
So the fact remains that till today Supreme Court has not spoken about validity of Sec.138. It is this draconian provision under which we can be jailed for TWO years if Our Cheque is dishonoured and a fine of the double the amount of Cheque is slapped on us.
Why such a stringent Act is passed by Parliament on us? Is this law good for people? Or is this law passed at instance of multinational banks who wanted to explore credit sector of 1.2 billion country?
WHAT HAPPENED IN CHINA FEW DAYS AGO
Three Indian business who were not able to pay their dues to a Chinese firm. They were detained in illegal custody. They called from their mobile to TIMES NOW, NDTV and other TV channels. A CRY OUT was made by media against government. The diplomat who went to help these people in China died of diabetes complications. After much noise, the businessmen were released in about a week.
And what happens in India? If you are unable to pay your debt and if your Cheque is bounced, you can be detained in jail upto two years.
The difference between above two example is this: In china, the businessmen were illegally detained for a week. In India, they can be legally detained for two years!
WHY WE ARE SUFFERING SO MANY UNCONSTITUTIONAL LAWS?
Constitution Art.13, gives our court powers to strike down laws.
Earlier, a system was in place that if you are challenging a Parliament Law, you can challenge it in only Supreme Court. And if you are challenging a State made Law, you have to challenge it in High Court of that State only.
Then this practice was changed. Now a Parliament Law can be challenged in every High Court. High Courts takes about 10 years to say whether the Act is legally valid law or not. Cases are filed in every High Courts challenging same Act, and every High Court expresses its own different views in about 10 years.
By that time, if sufferers of This Act are poor, they lose steam to take up this matter to Supreme Court. And thus, though a Parliament may pass a Constitutionally invalid law, it remains in operation for many years.
In this Case, Sec.138 of Negotiable Instrument Act is in force since 24 Years.
36 cases are checked by me passed by different High Courts regarding validity of this 138 Sec. I am not satisfied about legally correctness of these judgments. Since the parties might be poor and debt-ridden, they may not have means to approach Supreme Court. In any case, I have not come across any judgement of Supreme Court which says that such debt-enforcement laws are constitutionally valid and are permissible in our Constitution.
WHY PARLIAMENT WILL PASS SUCH UNCONSTITUTIONAL LAW?
We don’t have to look far. Many of you may have seen on TV debate on Lokpal Bill. Opposition Parties said that the Bill is Unconstitutional and therefore it should not be passed.
Whereas Government Minister said, “Our job is only to pass laws.If it is unconstitutional, court will decide. It is not for us to check whether it is constitutionally valid or not”
And it take 10 to 20 years for courts to declare a Parliament Made Law illegal.
Few month ago, in T.K.Plantation Case, Supreme Court said that a particular law which deprived a man of his property without any payment, was not Constitutionally valid.
It took 25 Years to High Court and Supreme Court to declare that this law was in violation of Constitution.The parties who fought the case were already dead and forgotten!
WHAT IS THE WAY FORWARD?
We have to challenge Sec.138 of Negotiable Instrument law in Supreme Court and to see what it says about Sec.138 of Negotiable Instrument Act.
I am not a very big lawyer or a Constitutional Expert Lawyers. I have still not got any chance to argue a constitutional matter in Supreme Court.
But if you tweeples will keep me encouraged, I will certainly try.
In next blog, I will write about what I propose to Argue in Supreme Court about unconstitutionality of this law.
In next blog, I will try to formulate what may appeal to Supreme Court to examine this law.
Haresh A. Raichura 
Some solution is required for cheque bounce cases.A stringent law may be misused by moneylenders to threaten the poor and lenient law may make things easy to escape from repaying loan and cheating lenders.Middle path should be found.Now i believe Cheque bounce will attract a non bailable warrant if i am correct.
Earlier, Money Lenders used to keep a revolver with them to recover loans. Now they keep blank signed cheques and send borrowers to jail if they are unable to pay. If after you have taken a loan, given signed blank cheques for security, and then your house is destroyed in Earthquake. You have become insolvent. Even then you can be sent to jail for dishonour of check. This is a horrible law. Middle path is already there. on basis of cheques, a creditor can fille a summarry suit which are time bound to be decided in about three dates. But creditor cannot execute decree if borrower has no means to pay or has sufferred a heavy loss.But this law is passed in addition to tell you that if you can't pay, then go to jail. You have to loot, borrow, commit theft or sell your wife"s Mangal Sutra to pay up.
Banking and Finance institutions take signed, post-dated checks on the account through which a loan is being repaid by the person taking the Loan. These post-dated checks are used for Automobile loans, some Home Loans and Personal loans. They also do write down a contract with the payee covering terms of closure period, and several other points. The agreement or contract makes it clear that in the event of Natural calamity or Force Majeure the contract terms are void. However, they do not essentially cover the terms "after" such Natural Calamity or event has occurred. Some financiers are willing to work with the individual or firm to ensure that they can recover it even if the period is extended due to unavoidable circumstances. However, there are cases where financiers get under undue pressure themselves resorting to tougher action. I did not know that a bouncing check could result in double the amount as fine and a two-year jail term.