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anonymous (Self Employeed)     19 December 2009

Section 138 need advice


My brother and wife died in stove accident. His inlaws filed 498A against our family and to take back complaint took post dated cheques from us (extortion). Complaint is now withdrawn.

What is the best way to stop paying for these cheques without getting sec 138 filed against us? I want to know how to stop these cheques and not pursue filing case against them for extortion.



 29 Replies

Adv Archana Deshmukh (Practicing Advocate)     19 December 2009

 Even if the cheques are dishonoured,  S.138 NI is attracted only when there is a legally enforceable liability.

prakash vathore ( lawyer)     19 December 2009

i agree with archana, but if u know that u have issued the cheque then why dont request to ur bank for stop payment.

anonymous (Self Employeed)     19 December 2009

 I can issue a stop payment, but I read that even issuing a stop payment amounts to cheque dishonor. Here is the link

Will it amount to dishonour if i change my signature at the bank? Would this be a viable option. Also can they lodge a police complaint for cheque dishonour?

Do I have to maintain that much balance and then stop payment for the cheque? Basically how do i protect myself and my family from further harassment?


balaji (Advocate)     19 December 2009


What you have stated is correct. Section 138 attracts even if you issue stop payment instructions to your banker.

However, you can protect yourself by lodging a police complaint against the persons who extorted cheques from you and get it registered. This will be a prima facie record to you to establish that you have acted upon at the right time.

Even if the cheque is bounced because of stop payment, according to a supreme court version, if the bank account is having sufficient balance to meet the cheque amount, and if the person who gives stop payment is having valid and sufficient reasons for giving such instructions, the accused can be acquitted. This means that you have to establish during trial that there is no legally enforceable liability for the cheque taken by them and because of that reason only you have stopped the cheque from payment.



1 Like

sunil pagare (lawyer)     19 December 2009

Sec. 138 attract if  there is legally  enforceable debt . it is the duty of the holder of the cheque  to prove it .If the cheque is given under the influence or threaten  of the party  then also 138 is not attract. your duty is to send legal notice  to  the holder of the cheque & ask him to return the cheque.

UJAS DHARAMSHI (Corporate Lawyer)     19 December 2009

What Mr. Balaji has stated is absolutely correct and legally foolproof. IT is the best middle method to set up a case against section 138 NIA. 

M.P.KRISHNAIAH (ADVOCATE)     19 December 2009

Ih cheques are issued for any legal enforciabledebt sec.138 of N.I. Act will attract.

bhupender sharma (head)     19 December 2009

It is up to them to prove the case that the cheque has been issused for the purpose of legally enforceable debt, now the law has been changed it is up to the complianant to prove how he got the cheque what was the debt. for which the cheque is issued.  under these circumstances it is a case of extortion u reply the same by mentioning the same facts in the reply. 

saurabh (advocate)     19 December 2009

if complaint is withdrawn...y u ignitng heat again....withdrawn all the money frm ur accnt...and keep sayng tht this time u dnnt have mney next time u give....they wont file 138 by sayng tht gave this cheque to withdraw complaint but they mite try to do smethng silly....but they wnnt succed....

Sujit Lal (Advocate)     20 December 2009

I am fully agree with Mr. Balaji.

Parveen Kr. Aggarwal (Advocate)     20 December 2009

Whether the cheques were handed over to them in the court proceedings and whether the factum of delivering cheques to them is mentioned in the court proceedings? If so, to my mind it will be difficult for you to deny the existence of a legally enforceable liability. You have also not mentioned the amount of cheques. If there is no record of handing over cheques by you and the cheques are of heavy amount, it will be difficult for them to prove the existence of a legally enforceably liability in the absence of any other material.  

anonymous (Self Employeed)     21 December 2009

 Hello Praveen

Cheques were handed to them in police station. Case did not go till court. It was withdrawn in the police station level itself (not in the presence of police officials though). 3 cheques each 5 lakh (total 15 lakh).

Thank all of you for your replies so far.

anonymous (Self Employeed)     21 December 2009

Originally posted by :anonymous
"  Hello Parveen

Cheques were handed to them in police station. Case did not go till court. It was withdrawn in the police station level itself (not in the presence of police officials though). 3 cheques each 5 lakh (total 15 lakh).

Thank all of you for your replies so far.

Parveen Kr. Aggarwal (Advocate)     21 December 2009

It is still not clear whether any record was made in the police station regarding the handing over of the cheques. Another aspect is the financial status of the in-laws of your brother. If the amount of the cheques is hefty considering their financial status it will be difficult for them to prove the existence of legally enforceable debt or liability. It is to be noticed that under section 139 of the N. I. Act there is presumption that cheque was issued against debt or liability but as per Supreme Court Judgment dated 11.01.2008 titled 'Krishna Janardhan Bhat VS. Dattatraya G. Hegde' there is no presumption regarding existence of debt or liability. 

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