u/s 138

jyotsna (Querist) 07 January 2011 This query is : Resolved
Our is a finance co. one of our borrower issued a security cheque now th said borrower is expired his son is paying the monthly installment of the said loan amount if we deposit the said cheque of the original borrower if its gets bounced can we initiate legal proceedings u/s 138 of n.i. act against the son.

or

suggest any other remedies to prosecute the son?

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adv. rajeev ( rajoo ) (Expert) 07 January 2011
You cannot send the cheque for collection because the cheque is belongs to dead person. You can filke civil suit for recovery of money against the lonees wife and son

Raj Kumar Makkad (Expert) 07 January 2011
138 NI Act is a criminal section which can be applied only against concerned individual so when a person has expired then neither his cheque can be used nor such person or his legal heirs can be prosecuted on the ground of bouncing of such cheque. only remedy is to file a civil suit against the legal heirs of the deceased person.

Guest (Expert) 07 January 2011
CASE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENT ACT IS NOT MAINTAINABLE AS THE SAID PERSON IS ALREADY EXPIRED.
BUT YOU CAN FILE A CIVIL SUIT AGAINST THE PERSON AND HEIR WHO RECEIVED THE DUES OF SAID DECEASED INCLUDING PF,GRATUITY AND OTHER FINAL SETTLEMENT OF ACCOUNT FROM THE OFFICE OF THE DECEASED WHERE HE WAS WORKING.GOOD LUCK.

Advocate Bhartesh goyal (Expert) 07 January 2011
I agree with experts.

Ajay Bansal (Expert) 08 January 2011
AGREED WITH ADV. RAJEEV.

Advocate. Arunagiri (Expert) 08 January 2011
the cheque is invalid as on date.

You can not prosecute his son for cheque bounce.

You can sue his son in the civil court.

malipeddi jaggarao (Expert) 08 January 2011
“Bill of exchange” is an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum of money only to, or to the order of, a certain person or to the bearer of the instrument. A cheque is a special type of Bill of Exchange. It is drawn on banker and is required to be made payable on demand. No order of a dead person can be carried out by the Banker. As such you can not present the cheques issued by dead persons and banker can not accept the cheque if the death is in his knowledge. When you can not present the cheque, there is no question of action of bouncing.

Amit Minocha (Expert) 09 January 2011
no case would be made out u/s 138 , however, civil recovery is the only remedy

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