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Section 138 of NI Act

(Querist) 13 March 2011 This query is : Resolved 
A Cheque dated 26.07.2011 was issued by a person. The cheque was lastly presented to the Drawer's Bank for payment on 27.01.2011 as there was holiday on 26.01.2011.

The Bank returned the cheque with the reason:
Not valid and insifficient fund.
Notice issued
Whether the complaint under Section 138 is maintainable?
Guest (Expert) 13 March 2011
Dear Mr. Mehta,
Please review whether the date of cheque was 26.07.2011 (as mentioned in the question) or 26.01.2011.

If the date of the cheque was 26.07.2011, the cheque is post-dated and was invalid, as not due to be presented. No complaint, becomes due even for insufficient funds, as the cheque was presented 6 months before the due date.
Amit Minocha (Expert) 13 March 2011
assuming that the date was 26.07.2010, the cheque is to be presented within 6 months of its date of issue. Since the cheque was presented for clearing before 26.01.2011 therefore 138 is made out specially since even the bank reported it as "insufficient funds" and not "stale". Go ahead, let accused challenge it.
G. ARAVINTHAN (Expert) 13 March 2011
Kindly state clear facts as to the date of the Cheque
DEFENSE ADVOCATE.-firmaction@g (Expert) 13 March 2011
Since it crossed six months it is a stale cheque.

Even otherwise the accused can always take plea that cheque was valid for the date only when issued. And this valid defense.
Santosh Goswami,Advocate (Expert) 14 March 2011
Yes,a case u/s 138 NI Act is maintainable.
RAJU O.F., (Expert) 14 March 2011
If the date mentioned in the cheque, was 26-07-2011, then it cannot be presented before that date. Hence cannot invoke S.138. Even assuming the date was 26-07-2010, it was presented after 6 months and hence stale, either way the bank is justified to state the cheque was not valid.
LEKH RAJ MEHTA (Querist) 15 March 2011
Sorry for the mistake in the date of cheque.
In fact the date of cheque is 26.07.2010
M V Gupta (Expert) 15 March 2011
Strictly speaking the six months period expired on 25-07-2011 and as such the cheque became stale on the date of its presentation. Thus there being a failure to present the cheque on its due date, complaint under Sec. 138 may not be maintainable.

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