LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

roshan (business)     02 January 2009

138 N I ACT


is there any case law on the follo? if yes pls send me , urgent.

creditor partnership firm had borrowed some money from debtor and the 3rd part "x" stood as guarantor towards the loan. there was a default n then the guarantor started forcing for money, now the guarantor did now make any payment till date to the debtor. creditor firm issued cheque to guarantor instead of debtor. cheque bounced. is the complaint filed by the guarantor "x" maintainable


 13 Replies

B.N.Rajamohamed (advocate / commissioner of oaths)     04 January 2009

Please check whether you have typed the question properly.

sanjoy kumar (advocate)     10 January 2009

I don'nt know what is your case. But on perusal of your statements, it could gathered that the guaranter "X" has certainly issued a cheque and the same has been bounced.

This is enough to establish a case u/s 138 of the N.I. Act.

PALNITKAR V.V. (Lawyer)     16 January 2009

i agree

roshan (business)     20 January 2009

thx for ur reply sir,

lemme tell u the facts.

"a" has borrowed loan of Rs.10000/- from "c", n for this transaction "b" stands as a guarantor.

now, a failed to repay the loan to "c", hence "b" every now and then came to "a" and demanded to clear the loan.

"a" inturn issued a cheque in fovour of "b" who is guarantor. The  cheque should have been issued in fovour of "c" from whom the loan has been taken.

there is no eveidence to show that till now "b" has cleared the loan amount to "c"

my question is that is legally "b" entitled to enforce the debt????? and file a criminal complaint for bouncing the cheque????????

Jainodin shaikh (Lawyer)     22 January 2009

If the cheque issued in favour of B is bounced them he is entitled to file a complaint u/s 138 of N.I.Act. Whether or not the cheque was issued to discharge the legal liability is the point of trial, perhaps is a strong defence available to A

nitin (advocate)     23 January 2009

I could on gather fromm your statement that gauranter issued a cheque and that has been bounced.

i wiuld suggest you that if the partnership firm has taken the money and the cheque was issued by the gurantor then whether their has occured any agreement between the debtor and creditor, or what consideration has been shown if the gurantor is served with the notice

kindly tell so that i could help you

roshan (business)     26 January 2009

thx for ur replies. probly you have mistaken the case. lemme brief u the case

"A" is a partnership firm who has taken loan from "C"

"b" is the guarantor for loan transaction

"C" is person who gave loan to "A" (partnership firm)

partnership firm failed to discharge loan to "C".

later by  "A"(p'ship firm) issued cheque to "B" (GUARANTOR) for discharge of loan amount.

actually the cheque should have been issues to "C" who actually gave the loan but the cheque was issed to guarantor.

lagally is guarantor entittled to recover from partnership firm?????


nitin (advocate)     26 January 2009

dear sir

no, gurantor complaint is not maintenable, as cheque was issued by the partnership firm to gurantor instead, it was to be issued in favour of "c" and as per the supremecourt judgements and according to the statutory provisions of NI act their should some lawful considersation to discharge the libality, and here no such consideration is thier

roshan (business)     28 January 2009

thx sir,

can u pls give me supreme case laws as u mentioned in your reply

its urgent pls

B.P. Bhardwaj (delhi)     29 January 2009



B.P. Bhardwaj (delhi)     29 January 2009



roshan (business)     29 January 2009

thx u mr.bhardwaj and mr.nitin.

can u pls provide me wid SC and HC judgement regarding the same



roshan (business)     05 February 2009

urgently required case laws on this .....pls forward if anyone has


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register