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Curious Sam (Self)     30 May 2012

Defense in a false 138 cheque bounce case

Recently, a learned lawyer posted a link to a Supreme Court Judgment, according to which 138 may not apply to a cheque which is returned by the bank for reasons other than insufficient funds.


In my case,  the bank has issued a clarification through a letter, that the cheques which bounced were not honored because they were more than 16 years old.  The facts are that when I first checked with the bank whether I even had a bank account with them at the concerned branch after reveiving a legal notice, the bank said that they had no records of any bank account in my name.  When I mentioned that how come, the cheques bounced in that case, they did more research and indeed found a dormant bank account that had not been used for 16 years.  Which is the best legally admissible agency to go for proving that the ink of the signatures is more than 16 years old, that is if i signed the cheques since I do not remember anything about signing - after 16 years.  The rest of the entries on the cheques are recent (and not in my handwriting). I have received summons in the 138 case, but no proof of loan advanced (amount more than 10 lakhs) has been produced when filing the case.  The other party managed to extract a contradictory statement from the headoffice of the bank by a clerk saying that the cheques bounced for insufficient funds (one can speculate how). However, the first question now is whether to contest the case or move for quashing of an obviously false case. Can I first take an expert's opinion on the age of the ink of the signature on the cheque and then move for quashing?  Should I file for a counter criminal case, in any event, since the complainant still possesses some cheque leaves that can be misused.  Police Complaint has been done.


 12 Replies


Quash will be difficuit but contest the case you can win it very easily.

Find the history of the person who filed the case for more specific advice.




It will be next to impossible to win any NI 138 case if contested aggressively by accused  from day one since the case has to be proved beyond doubt at many points that is  a) there was legal liability b) cheque was actually given by the accused from his account , presented  to the bank of the complainant  and returned  for want of funds e) proper dully authorized  legal notice was given f) such legal notice was received by the accused g) thereafter proper pleadings are made and  all documents are attached at first instance while filing the case.


Even if the presumptions are there in NI ACT the accused has legal right to rebut them which is more simple , sure and easy., and complainant  make mistakes on one or more  points/ steps., in over confidence.

Curious Sam (Self)     31 May 2012

The question is, whether to apply for quashing of the false case in a higher court since the cheques bounced because they belonged to  a very old & dormant account and not because of insufficient funds.


Also, can forensic analysis prove the age of the ink on a signature?


Does the date on the cheque have to be in the handwriting of the drawer?


Should he complainant present prrof of loan given when filing a 138 complaint?

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     11 June 2012

Under Sec138 of the NI Act,, a cheque should be presented for collection within 6 months from the date of the cheque or before the expiry date, if any, of the cheque, whichever is earlier. Hence a cheque issued 16 years ago will not qualify for action. 

Curious Sam (Self)     12 June 2012

So, will a cheque which is claimed by the complainant  to be post dated 3 years from the date of loan attract 138 when it bounces on being presented?

Prasun Chandra Das (Banker)     12 June 2012

chq is valid for "chq date+6 months (now 3 months)". If date on the chq was written 16 years back but the date was written as 01.01.2012, it is valid for 6 months from 01.01.2012. If you could specify the exact dates one could comment on the issue in a better way.

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     12 June 2012

Pl do  not confuse with three months and six months period of validity.

You have issued a cheque say dated 1st june 2013 than it is valid for next three months from that date.as of now.

However if you have issued a cheque three years back for 1.06.2013, that it is valid till this date and no further.

Post dated cheques are valid instruments.

If you can prove that date was not put you than still you can eascape.

However you can contest the case on validity and amount of loan.

Curious Sam (Self)     13 June 2012

It looks like contesting on the validity and amount of loan will be the ideal approach. What kind of evidence will be required from the complainant to prove the existence of a huge (several lakhs) hand loan and how can we move the burden of proving the loan on the complainant.

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     14 June 2012

It is a professional job so take services of an advocate.

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     14 June 2012

You are saying that the cheque was in your handwriting. That means the purported creditor has shown you the cheque. Did you note what was the date on the cheque? NIA-138 will not apply to a 16 year old cheque. You say that a case has been already filed against you. If so the court would have sent you copies of all documents submitted by the other party. If the papers sent to you do not contain evidence of the loan allegedly advanced to you, then the case is ab initio invalid. NIA-138 will apply only if your liability to pay exists. The court will not admit the case if evidence of your liability is not submitted. Have you been called for the hearing for the admission of the case. If so, you should argue in the court that the case should not be admitted as evidence of your liability to pay has not been submitted.

If I were in your place, I will not worry so much ahead as to what will happen and what I should do now itself. If you give complete information here, you will get better advice.

Harish K. Chandak (Advocate)     25 December 2012

Dear Advocates, on my cheque it is written that "Sec. 138 of Negotiable Instrument Act is not applicable", and cheque is bounce then what remedy i have, whether i go for 138 NI or not...!!!

Kindly guide me.

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     27 December 2012

Just a statement that a law will not apply will not help unless a valid reason is also put forward.

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