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J. Manigandan (Advocate)     06 February 2010

Sec. 138 do not attract in case of money lending business

I am of the opinion that when a cheque is issued to discharge a debt which is already ack. by execution of a pronote the proceedings under S.138 do not attract as the scope of the act in introducing the S.138 is to create credibility towards banking transaction, dishonor will be presumbed only as a peice of evidence in support of the pronote already executed by the debtor. the creditor has the right to recover debt by civil suit , he cannot byepass the procedures est. by law and initiate criminal proceedings. i request you to clarify is my opinion is correct.


 7 Replies

Vinod Kumar (Advocate)     06 February 2010

 Evidently not.

Understood that a cheque is issued to support a lendee's credibility in repaying back.

But if that credibility is lost, (like in the case of mistrust, cheating or fraud), he  stands as an accused under 138.

Moreover the legal  presumption is also in  such a way. Getting the money back is through the civil proceeding, but a person has to be punished for trying to deceive  the lendor.

bhupender sharma (head)     06 February 2010

but dear there is no bar for launching the criminal proceedings as well as civil.

Lilly rose (n/a)     06 February 2010

an essential ingredient for attracting s.138 NI is for a cheque dishonoured which was given for a legally enforceable debt. A cheque given for discharge of a pronote loan or its interest is dishonoured the matter of recovery of loan with interest is civil, but cheque dishonour by itself is a criminal offence and it does not relate to recovery of loan.

B K Raghavendra Rao (Senior Advocate)     06 February 2010

Initiating proceedings under Section 138 of NI Act  for dishonour of cheque is not for recovery of money and cannot be construed to recover debt created by a pronote.  It is a criminal act.  Therefore, a private complaint is lodged with the Magistrate for punishment for the offence committed by the accused.  Please see the prayer in such complaints.  It would be for punishing the accused.  Incidentally as the complainant has incurred loss on account of the criminal act, compensation is requested for.  Therefore, your contention that civil case could be filed for recovery of money against pronote and cheque bounce case should not be filed is wrong.  

Rohtash Babu Patel (Lawyer)     06 February 2010

J. Manigandan

in response to your querry,  i am of the opinion that it would depend on the facts of each case , for example, it the money lender has alresy filed a civil suit for recovery of money on the basis of the Pro-note , then certainly there would be a defense available that the cheque was isued only for the purpose of security, and it was never the intention of the drawer to issue cheque in discharge of the debt. then provision of 138 will not be applicable.

but on cannot stop the person from prosecuting the legal remedy under Civil as well as Criminal Law.

moreover the money lenders Act also dose not create bar on proceeding under Section 138

VIPIN SHARMA, ADVOCATE, JAIPUR, Mob. 09610000043 (Advocate)     07 February 2010

It is wrong conception. Please go through section 138 &139 of NI Act, it will made clear that 138 NI Act offence is madeout only when the cheque is issued for paying debt for which there is presumption. 

Vipin Sharma, Advocate. 

337, Akron ka Rasta, Kishanpole Bazar, Jaipur-302001

Mob. 09610000043

Anil Agrawal (Retired)     09 February 2010

 The moment a cheque is dishonoured, 138 is ripe. What happens thereafter is history.

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