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Sec. 138 of Negotiable Instruments Act

(Querist) 09 October 2010 This query is : Resolved 
Sir,
I would like to know whether it is mandatory to plead that the debt referred in a calendar case under Section 138 of Negotiable Instruments Act, is a "legally enforceable debt". What is the disadvantage if we fail to plead it.
L. Vinoba
Advocate,
Pondicherry.
R.Ramachandran (Expert) 09 October 2010
Sec. 138 N.I. Act is enforceable only against a legally enforceable debt. Therefore one has to plead that the bounced cheque was issued in part or whole discharge of legally enforceable debt.
If you do not plead it, then Sec. 138 cannot be enforced. For instance, some one gives a cheque to you as gift, and if that cheque gets bounced, you cannot file a caseu/s. 138 N.I. since the cheque was not issued in part or whole discharge of any legally enforceable debt.
Suppose you ask some one to give you a loan and he issues a cheque; that cheque gets bounced. You cannot file a case u/s. 138 N.I. since, the bounced cheque was not issued in discharge of any legally enforeable debt.
Therefore, it is necessary to plead that the bounced cheque was issued in discharge of a legally enforceable debt, in order to bring it within the ambit of Sec. 138 N.I.
R.Ranganathan (Expert) 09 October 2010
I agree with Mr. Ramachandran.
B K Raghavendra Rao (Expert) 09 October 2010
If you have not used the word "legal" when describing the debt, it would imply that the debt is legal debt. Mistake is not fatal to the case. However, you should have claimed that the accused is liable to pay the cheque amount. Whether it is legally enforceable or not would be looked into by the court.
Advocate. Arunagiri (Expert) 10 October 2010
You need not use the exact word "legal enforceable debt" while initiating the proceedings. You have to say on what account you are claiming the amount, that amount should be legally enforceable.
PJANARDHANA REDDY (Expert) 10 October 2010
MAIN CONTEMPLATION OF SECTION 138 ITSELF -IT MUST BE LEGALLY ENFORCEABLE DEBT-ANY AMBIGUITY/DOUBLE/DOUBT VERSION OF ISSUANCE OF CHQ WAS ESTABLISHED BY THE DEFENSE THERE WAS NO CASE AT ALL-BLANK/POSTDATED/MISTAKE/FRAUD/COERCION ARE SOME OF THE THINGS EFFECTS THE MEANING IN INTERPRETATION OF 138.
Rajeev kulshreshtha (Expert) 10 October 2010
You have to plead and prove the legal debt or liability. No special phraseology is required.
M/s. Y-not legal services (Expert) 10 October 2010
I agree with mr.ramchandran.
DEFENSE ADVOCATE.-firmaction@g (Expert) 10 October 2010
There are more opportunities to get out since as a rule complainant make mistakes in pleadings.

Many people think , believe or argue that law works like a maths quiz . If it is so there will not be other side.

Simple mistakes are damaging.You should read each and every word of the notice and complaint and you will find many mistakes, some of them have been suggested by Mr Reddy above.
M/s. Y-not legal services (Expert) 11 October 2010
Whats your view mr.shashi sir.. Are you supporting to mr.reddy or opposed?
Advocate. Arunagiri (Expert) 11 October 2010
Mr.Shasshi is talking philosophy of law.
MANISH (Expert) 13 October 2010
Dear Mr. Vinoba,
For ferreting out the words, legally enforceable debt or liability, there is no mandatory provision of law that the same has to be pleaded in the complaint.
Supreme Court as well as various high courts in their judgments have reiterated again and again that the whole contents of the plaint are to be looked into alongwith the annexures filed, for making out a case.

Your failure to plead the exact wordings does not harm your case, since Section 139 of NI Act comes to the rescue.


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