Negotiable instrument act

BHARTI KOTHARI (Querist) 19 May 2023 This query is : Resolved
That accused No.1 has taken loan from bank and accused No.2 &3 were gurantoor. the bank has obtained blank cheque from accused no.1. the accused No.1 expired and therefore emi were defaulted and the bank deposited the cheque which were bounced and therefore 138 complaint was filled against all 3 person i.e. signatory to cheque as well against gurantoor. in my opinion the complaint is not maintainable against accused No.2 & 3. please advice how to proceed

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This discussion clarifies that a cheque bounce complaint under Section 138 of the Negotiable Instrument Act is generally not maintainable against guarantors or the legal heirs of a deceased signatory. The offence is tied to the signatory of the cheque. While the bank cannot pursue a criminal complaint against guarantors or deceased signatories, they can still pursue civil recovery actions against the guarantors to reclaim the loan amount.

kavksatyanarayana (Expert) 19 May 2023
The legal heirs shall repay the loan and if they do not clear the loan, and the guarantors also shall clear the loan.

Advocate Bhartesh goyal (Expert) 19 May 2023
Complaint for offence of cheque bounce case can be filed only against the signatory of cheque .Since signatory of cheque ( accused no 1 ) is no more and expired and cheque bears no signatures of guarantors so complaint is not maintainable and liable to be dismissed.

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Sudhir Kumar, Advocate (Expert) 19 May 2023
GUARANTORS DID NOT SIGN THE CHEQUE. 138 WILL NOT APPLY TO THEM.

BUT THEY HAVE TO PAY THE LOAN.

Dr J C Vashista (Expert) 21 May 2023
Well analysed, opined and advised by experts Mr. Bhartesh Goyal and Mr. Sudhir Kumar, I endorse.
Complaint case against deceased signatory under the provisions of Section 138 of NI Act, 1881 is not maintainable.
Suit for recovery in civil court or DRT against guarantor can be filed if same is within limitation as per jurisdiction.

T. Kalaiselvan, Advocate (Expert) 21 May 2023
The cheque bounce case under section 138 NI act is not maintainable because the drawer of the cheque is not alive and the other two accused are no where related to this cheque which was given by the drawer to the bank in his individual capacity.
The bank cannot file the cheque bounce private criminal complaint against the legal representatives of the deceased drawer too.
The only option before the bank is to file a money recovery suit by impleading the guarantors as necessary party to the money recovery suit.

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