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surya kaliyamoorthi (Assistant Legal Manager)     17 January 2011

138 Issue

Learned Friends..

Plz help me to come out of the below mentioned problem...

i was given one cheque to realise the payment..

But before we were presenting the cheque... Account has been closed..

Whether the matter will be contested U/Sec 138 Negotiable Instrument...

Or can you plz suggest any other legal remedy...

Regards

Surya kaliyamoorthy



Learning

 12 Replies

adv. rajeev ( rajoo ) (practicing advocate)     17 January 2011

some judgements have come a/c closed does not attracts the NI Act.  So drafting of complaint is very vital to attract NI Act.

N.K.Assumi (Advocate)     17 January 2011

It can not be an offence falling under section 138.

Adv B.B.Gambhir #9814820602 (advocate)     17 January 2011

yes section 138 of Negotiable Instrument Act shall attracts. you are advised filie the complaint

DEEPAK ASSOCIATES (08010117611)     17 January 2011

The Complaint can be filed in the competant court even account closed

Radhey (Owner)     18 January 2011

 

plz. study this link of mine,certainly would be helpful,also request to give me feedback


https://lawyersclubindia.com/forum/Re-138-N-I-A-IS-DEAD-ALMOST-29868.asp

 

 

esp.  this link would make it ckear to U that stop payment/account close does not fall under 138 NIA,feedback plz.

 

 

https://indiankanoon.org/doc/159343/


N.K.Assumi (Advocate)     18 January 2011

138 is attracted when the cheque is presented and dishnour, but when the cheque is presented in a bank where there is no account dushonour of cheque does not arise but you may file money suit.


(Guest)

 

ACCOUNT CLOSED: When the cheque is returned by a bank with an endorsement 'account closed', it would amount to returning the cheque unpaid because "the amount of money standing to the credit of that account is insufficient to honour the cheque" as envisaged in Section 138 of the Act. (NEPC Micon Ltd. & Ors. Vs Magma Leasing Ltd.) 1999(2) CIVIL COURT CASES 471 (S.C.)
 
Cheque issued when account had already been closed - Provision of Section 138 will apply. (N.A.Issac Vs Jeemon P.Abraham & Anr.) 2005(1) CIVIL COURT CASES 690 (S.C.) : 2005(1) CRIMINAL COURT CASES 119 (S.C.)

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     18 January 2011

Account closed perse will not attract NI 138.

Mr Radhey has posted Bombay HC judgement that on the date of issue of cheque there should be existing liability.

There is fundamental defference between a cheque given even post dated for an existing liability - it will attract NI 138 but what the citation says that any cheque post dated given for future liability will not attract NI 138.

Please go through the finer points of the citation.

surya kaliyamoorthi (Assistant Legal Manager)     18 January 2011

My Learned Friends...

I will be grateful to all who responding me by giving your valuable suggestions...

We have sent legal notice to that defaulter already...

But he has replied to my notice and stating that it is not coming under 138 N/Instrument Act....

So here, can i go for filing case U/ Sec 138.. Is it needed to send corrigendum...?

Regards,

Surya Kaliyamoorthi

Jaimin Desai (Advocate)     21 January 2011

ANY ONE WHO ISSUE CHEQUE IS DUTY BOUND TO MAINTAIN SUFFICIENT AMOUNT IN HIS ACCOUNT FROM WHICH HE HAS ISSUED CHEQUE IN ANY CIRCUMSTANCES. IF PESON WHO CLOSES THE ACCOUNT HAVE MALAFIED INTENTION AND IT ATTRACT N.I. ACT 138 . SO MANY JUDGEMENTS ARE THERE IN THIS RESPECTS. SO GIVE NOTICE TO HIM DISCLOSING THAT U HAD NOT INFORM ME REGARDING THE CLOUSER OF ACCOUNT AND DUE TO THAT YR ACCOUNT IS NOT WORKING MEANS CLOSED AND THE CHEQUE ISSUED BY YOU FOR MY LEGITIMATE DUES HAS BEEN DISHONOURED SO PLS PAY ME THE AMT OF DISHONOURED CHEQUE.. 

Jaimin Desai (Advocate)     21 January 2011

DONT BOTHERE HIS REPLY. FILE COMPLAINT AFTER EXPIRY OF STIPULATED TIME. MEANS FILE COMPLAINT AFTER 15 DAYS OF HIS EXPIRY FOR PAYMENT FROM THE DATE OF EXECUTION OF NOTICE TO HIM. U CAN FILE COMPLAINT. 

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     22 January 2011

You can file the case but you have to prove legal dues otherwise no solution.


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