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Preethu (Student)     14 February 2013

Ni138 case or cheating case

Experts advice please. I have a case to file under section 138NI act. Case is, client given a friendly loan of upees 25lakh to his family friend in 2010 jan while with undertaking on stamp paper from him that he would clear the loan year or two. my cleint is not a money lender and he is doctor by profession. no other terms in the undertaking that is on 500rs paper. complete bank transaction. several month he has paid small amount via cheque and some time cash towards loan amount. payments receipts given with his acceptance. since july 2012 he has stopped paying any amount and he ows my client morethan 19lakh as september 2012. after few tough talks thereafter and he gave a pdc for rs.20lakh dated november 2012. several time he asked not to present the check. my client came to me seeking advice and I suggested to him, as the 3 month limitation on the check date nearing I asked my client to deposit the check and check returned with insufficient fund. now i have serviced notice to the person asking him to pay up all amount including interest part and he responded with 'check was stolen and also said account was closed in year 2009.

if the account closed in 2009 how can he give same account check in year 2012 for legally liable debt? does this become cheating? other thing is the account is closed why bank returned check with insufficient fund instead of account closed endorsement? their is not a way for me to go and check with bank ppeople and they will not provide any information related to account. no police complaint lost check? Any advice and input helps me make better drafting . What are the chances of the case as in the present known situation? should I combine 138act with cheating case or should I file different case? is filing cheating case adviceable at all? or if we just stay with 138Ni act case, during the course of trail if judge finds there is cheating involved, can they try the same under particular section also? thank you,


 2 Replies

Adv Rohit Dalmia 9324538481 (Lawyer)     14 February 2013

Kindly provide the copy of the documents, if any alongwith legal notice u/sec. 138 and the reply letter received.


Without looking into the contents of the documents, the notices and its reply it is difficult to give proper opinion.



Advocate Rohit Dalmia



adv. rajeev ( rajoo ) (practicing advocate)     14 February 2013

It attracts cheating and 138 of NI Act.  By issuing a bogus cheque knowing full well that he has closed his account he has committed and offence u/s 138 of NI Act.

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