Is It an Offence under 138 NIA?

As cheque was not drawn or received in "discharge" of any debt or liability, S.138 of NI is inapplicable.

Thank you Sir.

the necessary requirement to attract 138 of NIA is the legal enforceable debt. here in ur case there is no debt payable. hence 138 of NI Act is not attract

To draw the amount? What does it mean? Bearer cheque?

It is gift not legally payable debt.  So NI act is not applicable.

What will happen if he files 138 case? Legally enforceable debt or not will come in later. Normally, on the face of the cheque only process is issued.

Harassment started.

No process can be issued so no legal debt.

MY "Twisted"  PERCEPTIONS :

1.  A gift requires two persons,  one person as a  "giver of gift"  and another as a  "receiver of gift".   Gift giving or receiving or  "REVOKING"  cannot be one-sided consent.   It is a  LEGAL commitment, having implications under various laws, including the Income Tax laws.

2.  A Gift is a  "TRANSACTION"  (agreement)  involving  "BINDING CONSENT"  between two parties (family relation or non-family-relation = immaterial).   A Gift is a  "ADMITTED"   "irrevocable"  transaction between two capable & consenting persons, within the parameters of the Contract Act.

3.  A binding Consent + Transaction, is within the jurisdiction of the Contract Act.  In a Gift transaction,  consideration is immaterial,  BUT it involves committed transfer of Legal Interest of  "right of ownership"  of an gifted asset from one person (gift giver-doner) to another person (gift-receiver-donee)

4.  By the logic of point no. 3 (above), the defination of  "LIABILITY"  is automatically invoked, when a person hands over a gift to another.  Since a gift cannot be  "REVOKED", it is a committed "liability".
The gift-giver-doner, voluntarily takes onto himself a "irrevocable"  LIABILITY  pertaining to the value of the gift.

5.   HAD the Gift cheque been honoured,  IT WOULD BE  "LEGALLY ENFORCEABLE"  transaction, under various acts, including the I.T.Act.

6.  By the logic of point no. 3  &  4  &  5 (above),  a Gift cheque is within the defination of  "legally enforceable Liability"   AND is within the parameters of the "Negotiable Instruments Act.

7.  Hence,  CONTRARY TO ALLIED OPINIONS (as above),    a dishonoured cheque given as a "Gift", is a  "legally enforceable Liability"   WHICH IS COMPULSORILY TO BE HONORED,  and is covered under the N.I.Act, for appropriate prosecution.

8.  Not honouring a Gift transaction,  AFTER ITS commitment (from the gift-giver-doner)  AND  AFTER IT HAS been received (from the gift-receiver-donee),  can also be invoked under various provisions of the I.P.C.,  simply because a gift cannot be revoked, once it has been accepted by the Gift-Receiver (donee).

9.  After Giving and Accepting of a Gift  between the parties, the major key requirements for the creation of a contract become enforcable  ( Agreement (Offer & Acceptance),  Capacity to contract,  Consideration, Legal purpose, Legality of form, Intention to create legal relations, Consent to contract) .

10. Various other legal parameters also apply,  BUT conclusively,  a cheque issued AND ACCEPTED as a Gift cannot be revoked,  is a legal liability, is a legally enforceable liability and is covered for prosecution under the N.I.Act.

QUOTE  :  Better to squint & see throughly,  THAN to be totally myopic.

ANOTHER QUOTE :  "It requires a very unusual mind to undertake the analysis of the obvious"

Keep Smiling .... Hemant Agarwal
 

Your analysis shows that the gift cheques brings into existence a liability.  This means that the gift cheque was neither drawn or received in "discharge" of a liability and hence S.138 would not be attracted.

A wtitten notice essential after bouncing of a cheque.If factual conditions are mentioned than no case can be made out u/s 138.Since you have to produce copies of notice with your complaint in the court.On scritiny it will fail.