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yogesh (Owner)     14 July 2012

I am not party of cheque


 I am in big Trouble, My son has a propritor ship Firm and he is only propritor of that Firm. he issued a blank & undated cheque to some one by his own signature.

cheque was returned due to unsufficient funds.

but that party file a case in 138 against me. Weather it is possible?

or what can i do.

I am not on any position in that firm not releated in any tranctions

and as per bank account & Firm registrartion certificate my son is only proprioter of that firm.

I am a senior citizen. please help me .



 14 Replies

Anish Thakur 7018812737 (advocate)     14 July 2012

dear yogesh,

dnt worry you are safe

no one can sue any person without any cause and for others action.

it is not possible for parties to sue you under 138 for your sons negligence,

as per my instinct i think they had made you performa party to recover the money of cheque issued by your son from yours sons share in your property

to avoid it file a declaratory suit and bycott your son from all your movable or immovable assetts so that court will not attch his share in property for the recovery of the money in consideration.

feel free to call

1 Like

yogesh (Owner)     14 July 2012

Thanks Anish,

 But here i have to clear you one thing that they make me only party and leve my son openly. I mean to say that they file a case only against me.

please help

yogesh (Owner)     14 July 2012

Thanks Anish,

 But here i have to clear you one thing that they make me only party and leve my son openly. I mean to say that they file a case only against me.

please help

R Trivedi (     14 July 2012

-- S.138 case is maintainable against you only if the cheque issued by you from your account, gets dishonored.


-- Since you state that the case is already filed only against you, then you will (or already) receive the summon from the court, appear on the first date and tell the court that you have nothing to do with the firm, as the cheque is neither signed by you, nor the account is in your name. Take the Bank letter with you and your signature proof, you do not have to blabber about your son account or proprietor firm etc. You can even ask for huge cost on account of harassment.


-- This is the criminal proceeding and under this act  there is no question of any attachment or recovery.


-- Just relax, and do the needful only on the date, meanwhile if possible attach the notice/complaint copy, if it is possible.


As a father you should advise your son to pay off, honestly, if there are any genuine dues.

1 Like

rahul kumar (associate)     15 July 2012


suit against you wont b need to be can argue for the dismissal of the complaint and it will be

1 Like

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases.     15 July 2012

Please read the complaint filed in the court to initiate the case, somewhere both of you may have been related.

Better option is file revision against the process issued by the lower court since no dismissal possible in same court in cheque cases.

1 Like


Dear Yogesh,

The case itself is not maintainable as against you. The complainant having filed the complaint as against you will be dismissed by the court on you preferirng application. There are judgments to that effect which specifically say that the person who is not a drawer and in no way concerned to the issuance of cheque and party to the transaction whereby the legal liability ciould be fastened on such person shown to be as accused, the complaint itself is bad in law.

Further more, the complainant (drawee) to whom your son issued the cheque having not made him party to the proceedings, said similar proceedings could not be initiated again. 

3 Like

yogesh (Owner)     17 July 2012

will some one please send me any Judgemet regarding my case................ please it will very help ful for me.



R Trivedi (     17 July 2012

1. Cheque is not signed by you.

2. Cheque is not from your account.


I am reproducing the S.138 for your benefit.. Read the highlighted portion..

Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for 2["a term which may extend to two year"], or with fine which may extend to twice the amount of the cheque, or with both:


Now what kind of judgement you require when the act itself says that it should be drawn by you from your account. You have not signed the cheque neither the cheque is of your account... So where is the problem.  


The court on the first day takes the bail bond of the accused and frames the charges, but when the section itself is not applicable then neither you are required to give the bail bond nor any charges shall be framed against you. As a precaution you should carry following documents..


1. Your signature proof from your existing Bank Account.

2. A letter from the bounced cheque Bank that account is not yours and it is maitained by someone else.


Either court will dismiss the complaint or ask the complaint to provide more details before proceeding ahead.




yogesh (Owner)     19 July 2012

Please send me any judgement copy or link regarding my case

B.N.Rajamohamed (advocate / commissioner of oaths)     19 July 2012


Certainly you cannot be prosecuted under section 138 N.I.Act. It is better you file a quash before the high court you have a fair chance to succeed. The drawer of the cheque who has a legal liability towards the payee alone can be prosecuted.I f you are a guarantor and if you have issued a cheque as a security you can be prosecuted otherwise not.

R Trivedi (     19 July 2012



The link or citation will be useful for you once the case proceeding starts and your turn for the defense comes up.


Liberty is your fundamental right and you cannot be made accused against the statue. I have already reproduced the act part for you. Which Judge will frame charges against you when the cheque itself is not yours ?? Sometimes at the time of assessing the complaint it becomes difficult for the judge to identify the name, so an incorrect summon as suggested by complainant may come, but charges cannot be framed againt you.


On the other hand looking at your reluctance to post the cheque copy and complaint copy and also your fear, it gives me an impression that you are hiding something. May be you have signed in your hand the cheque of your son's prop firm. Be careful in that case complainant may file case under S.420 also, which is worse than case under S.138.


yogesh (Owner)     19 July 2012

Hello Mr. Trivedi,

           I really appericiate yours suggestions But i promissing you again that any word told by me is very right Now i tell u full story,

This cheque was given by my son, and they make me party and case starts in 2010 and still at evidence Stage. my lawyer i think not taking this case seriously because he must be place all facts against court at first heairing but then he suggest me for bail then every time lingering on the process and after efforts he place a rivision file in upper court than upper court reject it on the basis that case runs in lower court so it is out of our juridiction. And now it is at evidence stage and next heairing is on 26 July. So i am in a hurry

Soplease help me.


R Trivedi (     20 July 2012

So it is in process not at the summon stage.


Post following details, then only we can help further..

1. Copy of Notice.

2. Copy of complaint.

3. Copy of cheque.

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