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Yogender Dagar (Advocate)     30 August 2009

case u/s 138 NI Act

In regard to my early querry regarding filing of criminal case u/s 138 of NI Act where a cheque was lost by the drawee bank which was dishnoured due to "Insufficient Funds' by the drawer's bank . And the drawee's bank has delievered a certificate to the drawee issued by the drawer's bank certifying the dishonouring of the lost chequedue to aforesaid reason .Now please advice whether on the basis of a bank certificate a case u/s 138 of NI Act can be filed against the drawer.


 27 Replies

Adv. Deepak (Advocate)     30 August 2009

Advocate Yogendar Dagar, You please send a legal notice to the drawer mentioning that the cheque has been bounced and claim the amount of the cheque within 15 days.  If you do not receive the amount within the stipulated time, you can prefer case under 138 NI Act, before JMFC.

Anil Agrawal (Retired)     30 August 2009

 15 days or 30 days?

Anil Agrawal (Retired)     30 August 2009

 Bank's certificate has no value. The original cheque must be produced. The drawer can legitimately claim that it is a conspiracy between the bank and the payee. Where is the cheque, where is the signature and proof?

ghansham das (self employed engineer)     30 August 2009

without original instrumetn the process can not be issued by Magistrate,??

but the mistake committed by travel/courier/post can not be held the responsibility for

hence banks is liable to pay. with 2% min interest, with in 30-90 days maxm. should be law of justice.

Hope will agree for.

Adinath@Avinash Patil (advocate)     30 August 2009

In your case section 138 of N.I.Act not attracted .you can file complaint under section 420 of I.P.C. against cheque drower& concerned bank.

Anil Agrawal (Retired)     30 August 2009

 File a case in consumer court for deficiency of service by the bank and claim the amount plus compensation for causing mental agony, harassment, loss of funds.

ghansham das (self employed engineer)     30 August 2009

A cheque issuence by Registered company,[ incorporated - under ROC], against some dues, bills, etc,   IS as  a prortion of admitted liability, as a part payment ; issued PAYMENT.


Can it be disputed under any circumstances/ if so under which law, rule, and  a Registred company managed under Board/s of directors, can make scape route to avoid punishments.

please  respond.

Anil Agrawal (Retired)     30 August 2009

There is no cheque. There is no case either under Sec.420 or under Sec.138 NI Act. It is immaterial that the cheque was deposited and lost in the bank. Bank's certificate is no more than a piece of scrap of paper. What will you confront the drawer with?

Anil Agrawal (Retired)     30 August 2009

 Why can't it be an advance payment for a contract or work yet to be fulfilled? How will you prove that the payment was due to you under some agreement/contract?

Adinath@Avinash Patil (advocate)     30 August 2009

In my opinion you can file comlaint under section 420 of I.p.c.  The certificates are not scrap papers,you can prove it by leading other evidence.Court can issue process.Hence I M not agree with Mr. Anil Agrawal

PARTHA P BORBORA (advocate)     31 August 2009

I agree with Mr. Adinath.

ghansham das (self employed engineer)     31 August 2009

Sir,  I am a common citizen,engineer by profession;                             if    common sense is applied,                                                   the certificate is a valid intrument issued by third party  who can be / shall be respondent/party,                                                 has valid weight as certificate issued by bank,

 Irrespective scheduled/nationalised/or else.

Hope my views are acceptable in the laws.


ghansham das (self employed engineer)     31 August 2009

In above contest i agree with Opinion frramed   by  Mr Adinath Adv.

ghansham das (self employed engineer)     31 August 2009

 Mr Anil Agrawal , I do not agree with you pls.

Yr advise is not right.pls.

common application of mind will not accept when the jc are highly intellegent.ok.


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