138 n i act


Please advise me on the following: Wife is borrower from financial institution & husband is guarantor. Husband has given cheque as security, which is dishonoured. Notice is served under 138 to wife as she is borrower but drawer of cheque is husband. Is this tenable? Please advise.

 
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Practicing Lawyer

Section 138 of NI Act fasten criminal liability on the Drawer of Cheque and none else except in case of a company where directors/partners are vicarously liable.  However in your case if complaint is filed against your wife only and you are not impleaded as an accused, she will get scot free.  But if you are also impleaded as an accused, you will have to face trial and punishment.

 
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LEGAL CONSULTANT

Dear Mr. Sanjay

           Wife is the loanee and the husband has stood as gaurantor giving a security cheque,which got dishonoured.Section 138 attracts on the person who has issued the cheque but not the loanee.Have they not taken cheques from the wife.Whenever you post a query,you should always attach the complaint copy,so that all the experts here ould be able to give you the correct advice.Every complaint ,if we study minutely will certainly have some loophole or the other,which could save the acused.This is not a gaurantee but only a possibility.kindly come out with some more facts of the case.

 
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Legal Evangelist - TRIPAKSHA

Agreed with C P Chugh.


Regards,

 
Shonee Kapoor
harassed.by.498a@gmail.com
 
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professional Advocate

if the matter is exactly as what you said, then the complaint is not tenable.

 
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POWER OF DEFENSE IS IMMENSE

This is a complicated case of facts and law. NI act presumes vicarious liability. The face of mistake of notice will come only in trial not for issue of process.

 
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Director

138 NI Act deals with dishonoured cheques and the offence committed due to the dishonour of the same. So here the person immediately liable will be the issuer of cheque and not the loanee. Therefore the notice has to be issued to the husband though he is not a loanee. 

 
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Legal Evangelist - TRIPAKSHA

Here the bank has also not issued a notice to the guarantor to pay up and just presented the cheque.

 


Regards,
 
Shonee Kapoor
harassed.by.498a@gmail.com
 
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Advocate

Interesting issue indeed.

 
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complaint against wife is not maintainable on the basis of issued notice as she is not drawer of cheque.

 
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