B.P. Bhardwaj (delhi) 29 December 2008

Post dated cheque

Dear All,

I have received a post dated cheque (15.02.2009) for Rs. 1000/- today. Meanwhile if the writter of the cheque give Rs. 100/- to me cash before 15.02.2009 and refuse to issue fresh cheque of Rs. 900/- to make full & final payment to me. Can I deposit post dated cheque of Rs. 1000/-with my banker to recover balance amount of Rs. 900/- for the purpose of initiating legal action under section 138 NI Act.

Regards

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3 Replies

Rakesh Shekhawat (Advocate) 29 December 2008

My common sense says you can’t initiate proceedings under negotiable instrument act if part payment is made even before presenting the cheque but as far as some high courts concern I am cite some authorities for you who permit Drawee to present and prosecute drawer for unpaid amount.:-

* Section 138 - Cheque issued for Rs.10,000/- towards part payment out of a liability of Rs.44117/- Thereafter draft for Rs.5500/- paid - Cheque presented and dishonoured - Complaint filed - Thereafter cash amount of Rs.5,000/- made - Held, even after the adjustment of these two amounts, still the accused is liable to pay nearly an amount of Rs.34,000/- Hence, as long as there is legally enforceable liability either on the date of issuance of the cheque or on the date of encashment of the cheque, the complainant is entitled to encash the cheque issued by the accused - Order of acquittal passed by Magistrate set aside. (Padmaja Marketing Enterprises Vs V.S.R.Murthy) 1998(2) CIVIL COURT CASES 684 (A.P.) : 1998 ISJ (BANKING) 0412 : 1997 (4) ALL INDIA CRIMINAL LR (A.P.) 0284 : 1998 (3) RCR (CRL.) 0034 : 1997 (4) CRIMES 0106 : 1998 CRL. L.J. 0881 : 1997 (2) ALT (CRL.) 0245 : 1997 (1) ALD (CRL.) 0814 : 1998 (36) BANK LJ 0077 : 1997 (2) LS AP 0020

*Section 138 - Offer to make payment - Held, once the offence is committed and merely by making the payment will not put an end to the same - It may effect the gravity of the offence. (Balwinder Singh VS Punjab and Sind Bank) 1998(3) CIVIL COURT CASES 408 (P&H) : 1998 ISJ (BANKING) 0647 : 2000 (1) ALL INDIA CRIMINAL LR (P&H) 0399 : 1999 (4) RCR (CRL.) 0380

*Section 138 - Part payment made - Is of no avail to the drawer of the cheque for evading prosecution. (Vandana Jain Vs Chief Judicial Magistrate) 1998(1) CIVIL COURT CASES 476(All.)

Ravi Arora (Advocate) 29 December 2008

you recived 100/= and if you had given a reciepts of that amount even than you can give notice and file a case against that person plz see ACC 2006 NOC at PAGE 13' Bombay High Court - Nagpur Bench ' Negotiable Inst. Act 1881 - Sec.138 Notice Demanding the balance amount which was lesser than the amount of cheque- would not make the notice invalid , as part payment of the amount of cheque has already been made by DRAWER