applicability of NIA Section 138
Suresh Ahuja
(Querist) 08 February 2011
This query is : Resolved
Sir,
Please tell
A Cheueq is dated 01.01.2011, name,amount is filled, cheque is without date, it is not delivered to the intended person, it is lost somewhere.For the sake of safety balance is not kept sufficient in the bank account.
On 10.01.2011 the bank is informed about the loss of cheque, and the banker sends the confirmation on 12.01.2011 that the cheque is stopped payment.
On 20.01.2011 the person whose name was filled on the cheque somehow finds the cheque and puts the date and deposits it in his branch.His branch without sending it to the bank on which the cheque was drawn, gives the insufficient funds memo.
1. Please tell me whether this lost cheque is subject to NIA 138?
2. Can 10 cheques be clubbed together in a single complaint?
Please give any reference in support of the answer.
Thank you.
Suresh Ahuja
Parveen Kr. Aggarwal
(Expert) 09 February 2011
1. Section 138 of the Negotiable Instruments Act, 1881 is attracted only when the cheque is issued in discharge of a legally enforceable debt or liability. In case the drawer does not have any such liability towards the payee, section 138 is not attracted. so a lost cheque is not subject to s. 138 NI Act.
2. Yes.
Advocate. Arunagiri
(Expert) 09 February 2011
You have prove that the cheque was lost, only in the court.
malipeddi jaggarao
(Expert) 10 February 2011
When the cheque is deposited by the same person for which it is drawn, how can you say that the cheque is lost and found by the same person? If you do not have any liability why the cheque is drawn in his favour? There is no wrong if the holder in due course puts the date on the cheque. How any bank can return the cheque with reason quoting insufficient funds without presenting the same to the concerned bank? You are not giving full facts of the case and asking the expert to give their opinion. One can assume there may be one or two slippages in the facts presented, but in this case all are slippages. Please correct your query and come back o the forum with full facts.
