Negotiable Instruments

Papanna (Querist) 18 April 2011 This query is : Resolved
Dear Sirs, can i initiate Section 138 of NI Act and Suit for recovery for Cheque dishonor as "Account Closed" at a time. is that coming under res-judicata?

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DEFENSE ADVOCATE.-firmaction@g (Expert) 18 April 2011
It depends when the account was closed and legality of dues.

R.Ramachandran (Expert) 18 April 2011
You can file both complaint u/s. 138 N.I. Act and a separate suit for recovery of the money covered by the cheque. Both are separate remedies and can be availed simultaneously. There is no bar for doing so.

Raj Kumar Makkad (Expert) 18 April 2011
I completely do agree with Ramachandran.

Papanna (Querist) 18 April 2011
I don't know when the account was closed, but check was dishonor on 10.03.2011

Naresh Kudal (Expert) 18 April 2011
No problem if your creditor issues cheque after closing his account, he himself is liable. Res-judicata is not applicable in this matter.

Parveen Kr. Aggarwal (Expert) 18 April 2011
Yes. Complaint under section 138 of the Negotiable Instruments Act, 1881 and suit for recovery (either simple suit for recovery or a suit under Order 37 of the Code of Civil Procedure, 1908) can be filed and simultaneously proceeded with regarding dishonour of a cheque.

Kiran Kumar (Expert) 18 April 2011
S.138 NI does not come into play where the cheque has been dishonoured due to "account closed" position.

S.138 is applicable only in case where the cheque is dishonoured because of insufficient funds or proceeds exceed remarks by bank.

better take your civil remedy and if you wish to proceed under criminal law then take necessary action under the provisions of IPC.

Guest (Expert) 18 April 2011
Dear Papanna,

Mr. Kirn Kumar is right in his observation about the non-applicability of s.138 of NI Act.

However, the liability of the drawer of the cheque cannot be extinguished bust with the reason of the closure of his bank account> He is liable to compensate the drawee ubder s.31 of the NI Act, which states, as follows:

Extract of Sec 31 of NI Act:
The drawee of a cheque having sufficient funds of the drawer in his hands properly applicable to the payment of such cheque must pay the cheque when duly required so to do, and, in default of such payment, must compensate the drawer for any loss or damage caused by such default.

adv. rajeev ( rajoo ) (Expert) 18 April 2011
you can file both civil and criminal case. IN the criminal case you wont get money because there is only punishment. In the civil you can recover the amount after the decree by filing execution petition.

Advocate. Arunagiri (Expert) 18 April 2011
You can file civil and criminal cases simultaneously.

Sarvesh Kumar Sharma Advocate (Expert) 19 April 2011
yes you can file civil and criminal case !

Vinod Singh Tomar (Expert) 19 April 2011
Mr. Ramachandran has guided you properly and you please follow the same .

indrajit mukhopadhyay (Expert) 19 April 2011
better go for civil remedy.
S 138 NI Act is not fully applicable here,This is not a case of dishonour of cheque due to insufficient fund.so purpose of s138 will be frustrated.