Negotiable Instrument Act

Guest (Querist) 29 March 2009 This query is : Resolved
My case Details:
I am on the complaint side, accused has done signature on cheque in the form of "name father's name" but in bank true signature of accused is as "name father's name surname" so basically difference is he has not wrriten surname on cheque.
on the other side when cheque bounced, memo of bank has described two reasons namely:
1) signature differs
2) Insufficient fund
Accused has argued in court that there is "signature differ" so there is not application of sec 138.
1)What is the winning chance of our side?
2)I has heard of that there is suprem court judgement of this type, so please provide me the citation of judgement.

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Neeraj Arora (9897136755) (Expert) 29 March 2009
Dear
Hardik, As your case, You have recived the Bank memo with two reasons
1) signature differs
2) Insufficient fund
as per 2nd one you have right for the case under 138 of N.I. Act.
But as you told that Accused has argued in court that there is "signature differ" so there is not application of sec 138.
You may also go with 406/420 I.P.C against the accuse.

n.k.sarin (Expert) 29 March 2009
Dear Hardik,your case perfectly comes under section 138 of N.I.act and there are 99% chances of winning your side, if other factor is in your fevour.

A. A. JOSE (Expert) 30 March 2009
Mr.Sarin is right.

adv. rajeev ( rajoo ) (Expert) 30 March 2009
When accused has argued about difference in his signture u could have called bank a/c opening application of the accused and u could have sent it for expert opinion. U can compare his signature going thru., on the vakalat filed on behalf of the accused and postal acknowledgement. Because some persons will be in the habit of signing differently. Better to send it for expert opinion. If it is insuficient funds u have a case.

Ravi Arora (Expert) 30 March 2009
Drawer can be prosecuted u/s 138 of n.i.act that a part, drawer of cheque can be guilt of offence of cheating u/s 420 ipc

Ashey (Expert) 01 April 2009
I agree with the views

Guest (Querist) 05 April 2009
Thanks for these suggestion but sir I have another two issues with this matter.
They have argued on another two bases that are as follow:
1)Counterfoils of Cheques are of the date of five years ago and date of acknowledgement of debt letter is also five years ago. so they say that this is time barred debt.
but cheque has the date of current date and all the other procedure has been duly done.
2) Body of Cheque is filled by complaint, so they said that this cheque has been presented for cheating purpose.
I want the solution of these matters.