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P C GUPTA (Director)     01 May 2010

conditional cheques

A person has issued undated cheques of certain amount alongwith a cover note dated 1/11/1999 confirming issuing of the cheque for repayment whenever cheques are presented in the bank with the  consent of drawer.

whether these cheques will attract sec.138 if the holder get these cheques dishonoured and file case.


 5 Replies

Adv. Gulammayudin A. Gagdani (LEGAL ADVISOR)     01 May 2010

well this cheque will attract sec. 138 but in reply as per cover letter, you need not be worry.


if you are able to prove that the cheque was issued for repayment of loan, you may proceed to send s.138 notice through a lawyer as if you presented the cheque by getting consent of the drawer. the condition does not say that you shall get a WRITTEN CONSENT, hence you may even an oral consent (which is sufficient) and present the cheque immediately.


You have mentioned that there is a covering letter dated 1/11/1999.  This letter will show that the cheque was drawn or issued more than 6 months back.  To attract s.138 NI cheque should be deposited within the period of validity which is 6 months.  In this case there is evidence to show that the cheque is a stale cheque and therefore according to me S.138 will not be attracted.  Please note that the date which the cheque bears is the date of drawing only so long as there is no contrary evidence.  In this case there is evidence to the contrary in form of covering letter dated 1/11/1999.  Therefore even if a date is put on the cheque as of today that would not be the date of drawing.

I am emphatice S.138 would not be attracted.

Dharmesh Manjeshwar (Advocate/Lawyer)     04 May 2010

Definitely will attract sec - 138 N. I. Act ...... undated cheques of certain amounts issued against repayment is clearly mentioned in covering letter .... moreover there is a writing that these have to be represented for encashment with the consent of the drawer .... which means that drawee has been given the authority to put dates on the cheques as and whenever consent has been obtained from the drawer .... the covering letter stands evidence of all these facts ..... when it is mentioned that these undated cheques have to encashed with the consent of the drawer it can well be presumed that the drawer has authorised the drawee to put dates and encash them after obtaining the consent of the drawer ..... and there is no mention of a written consent ... so the drawee can always state that the drawer had given oral consent but now denies the same in his 138 complaint.

shailendra patadia (director)     13 January 2020

kindly post the complet content of the letter under which the cheques were given as all depends on what terms the cheque were given in the covering letter 

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