Cheque was bounced due to Insufficient Funds, my lawyer says it is a security cheque and does not attract Section 138. Please give your opinions.
One year ago, Person borrowed 80k from me and gave me pronote
He also issued cheque-1 as security and promised to pay monthly interest
after 3 months, he gave another cheque-2
after 3 months, he gave another cheque-3
after 3 months, he gave another cheque-4 and stopped paying interest
8 months ago he stopped picking my phone calls, so all the conversation through whatsapp only. when the current cheque is about to expire its 3 months validity, I sent whatsapp message to him "Please send cheque dated xxxx for Rs.80,000/- in the name of xxxx and post it to my address." He ignored my message, so I sent another message "If new cheque does not reach me in 3days, I will deposit your cheque" Soon he sent new cheque.
Loan borrower issued the Cheque-4 in beginning of April2018. This cheque was completely filled by loan borrower including date 10-Apr-2018, he issued this cheque as security for principal amount, not for the discharge of legal debt, though legal debt exists, he never asked me deposit it.
He did not pay me interest for the past 4 months, I sent many whatsapp messages to pay the interest, but he did not care to even reply back. I got vexed. I thought he will not pay the principal also. So before the cheque expires, on 53rd day from cheque date, I deposited this cheque in my bank account for non payment of interest without permission from loan borrower, as he has failed to pay me interest for the past 4 months. the cheque was returned due to Insufficient Funds.
Now, will this attract Section 138 of the Negotiable Instruments Act, 1881 for DELAYED deposit of SECURITY cheque, for non payment of interest without consent of cheque issuer? Please note that legal debt exists and I have pronote. I gave him money via bank, he deposited monthly interest in my bank account.
cheque date is 10-Apr-2018
I deposited the cheque on 03-Jul-18
My lawyer says I should have deposited the cheque withing a week of receiving it, should not wait for 53days, borrower will show the whatsapp messages to court and prove it is a security cheque.
