138 ni act
Navin Kumar Agarwal
(Querist) 21 September 2014
This query is : Resolved
We are in business and we received payment from one client by cheque dated 21-08-2104 but cheque got bounced stating reason that a/c closed in year 2011,cheque was given to us in april 2014 ,can we file case u/s 138 niact as we have clear proof of our outstanding amount or not as bank a/c was closed 3 year back
Anirudh
(Expert) 21 September 2014
When did you receive the intimation from the bank?
You have to first issue statutory notice u/s. 138 to the drawer of the cheque informing him about the dishonour of the cheque and asking him to make good the amount of the cheque within 15 days from the date of receipt of the notice.
After the expiry of the notice period, in case he does not make the payment, then you have to file the Complaint u/s. 138 before the Magistrate under whose jurisdiction the drawyer's bank is situated.
Even 'account closed' is equivalent to 'insufficient fund'. If you have proof that he gave the cheque only in August 2014 (like covering letter etc.) that will be an added advantage to you.
Every step that you have to take in this matter is strictly 'time-bound' and in case you do not take timely action - whether it is issuance of legal notice or filing of the complaint thereafter, you will suffer. Therefore take immediate steps by getting in touch with a lawyer.
Nadeem Qureshi
(Expert) 21 September 2014
Dear Querist
you may file the case against the accused under section 138 of N.I. Act read with section 420 of IPC before criminal court.
Rajendra K Goyal
(Expert) 21 September 2014
The account was closed in 2011 and cheque was issued in 2014 knowingly by the drawer that the account is closed.
You can lodge FIR for fraud and cheating which would fetch better results.
ajay sethi
(Expert) 21 September 2014
you can file complaint under section 138 Ni . you can also file complaint of cheating under section 420 of IPC . further you can also file summary suit to recover your money
Dr J C Vashista
(Expert) 22 September 2014
I agree with experts especially Mr. Ajay Sethi.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 22 September 2014
Your story has build in contradictions.
How it is that you accepted a cheque in 2014 from a account which was closed in 2011, it means that there was no transaction from that ac during this period with you .
Again you have to prove all the hand writing starting from date amount on the instrument.You have to also produce credible witness before whom the cheque was given.
There will also many other lapses on your part which are relevant in any criminal case.
One of the major fault in all such cases is that there is no entry in any of your legal account books about the reciept of cheque, its amount and date.
You may have civil liability that also will have to be proved , mere bills are not sufficient.
Raj Kumar Makkad
(Expert) 22 September 2014
The acknowledgement of the opposite party qua his liability within the limitation of 3 years is must for filing civil suit.
T. Kalaiselvan, Advocate
(Expert) 29 September 2014
The cheque reportedly issued in the month f April this year has lost its validity, however, you may go for a remedy in the civil court for recovery.
