Case u/s 138 of NI Act
Yogender Dagar
(Querist) 27 August 2009
This query is : Resolved
Whether a party can file criminal case u/s 138 of Negotiable Instrument Act whose original cheque has been misplaced by his bank.Please mention some citation in this regard so that criminal proceeding may be initated against the drawer of the cheque. And what are other legal remedies which can be adopted by him for recovery of cheque amount.
Kiran Kumar
(Expert) 27 August 2009
Mr. Dagar it will be better if u state the facts completely.
in a cheque lost case, the civil liability stands with the bank....S.138 NI is not made out.
better explain the facts.
A V Vishal
(Expert) 27 August 2009
Rightly suggested by Kiran, not all cases of cheques can be filed u/s.138 of the N.I.Act,Further, you state that the banker has lost the cheque, in such a case how is the drawer liable for the cheque loss. Without details it is difficult to answer such queries.
A. A. JOSE
(Expert) 27 August 2009
Complete facts imperative.
Bhumik Dave
(Expert) 28 August 2009
Misplace of check by bank is nt covered under NIA. bt if u have a better evidence u can file complaint before District Consumer forum for defi. in service.
Sarvesh Kumar Sharma Advocate
(Expert) 28 August 2009
Yogendra ji,
there is not a specific provision in n.i.act that if bank lost any cheque then cheque bouncing case is made out or not.
however in sec-131 ni act,sec-45 A, is some sec. where some hidden points r there.
(KERLA STATE CO-OPRETIVE MARKETING FED. V STATE BANK OF INDIA J.C.C.2004 (1)605)
how ever in yr case the offence u/s-138 has been commeted,only cheque is lost by d bank and the cheque bouncing case is depende upon specific time limit.
SO,first file a proper case u/s-138,142 n.i.act,
and for compentation lost of cheque file a consumer case also.
if u file both of the case then the opposit parties can never take plea in there statement for filing proper case .
and if u not file 138 case then after time limit u can never file such case.
ad. creaminall
(Expert) 28 August 2009
plz. mention the proper details about the dispute.
MANISH
(Expert) 29 August 2009
You have not mentioned about the details about your case.
Mr. Kiran has suggested you the right thing.
If the return memo of bank made remarks according to which case u/s 138 is not made out, then it will be useless to file a case u/s 138 NI Act. Still you cannot file a complaint in absense of a cheque unless a copy of such cheque be certified by both the drawer as well as payee bank, which no bank will do.
So, the best option available to do is to file a consumer complaint against the bank.
Ravi Arora
(Expert) 31 August 2009
rightly said by kiran , i do agree with him
Raj Kumar Makkad
(Expert) 05 September 2009
Question has rightly been dealt by Kiran. Nothing remains to be clarified. No criminal offence under section 138 in made out in the circumstances mentioned by author.
Vijyant Nigam (09807349001)
(Expert) 05 September 2009
Unclear query...
whether the cheque was lost by the bank after the same returned unpaid from the clearing house or the cheque was lost before sending the same for clearance?
please specify.
If the same was returned unpaid then it should be clear that the chepue was bounced before the same was misplaced. Some proof we should have, regarding insufficient balance in the drawer's account or some other reason for which the cheque was returned unpaid.
there are So may suggestions but for the specific queries.
With Best Wishes
Vijyant Nigam
Advocate
High Court
Lucknow
9794208026
Sachin Bhatia
(Expert) 11 October 2009
If cheque was lost then the civil liability stands with the bank, Sec 138 of NI is not made out. You can also file a consumer complaint against bank.
