Cheque bouncing
sagar madan
(Querist) 27 August 2008
This query is : Resolved
Dear All
My client has given a loan to a person of Rs.50000 by cheque. She is a house wife and rarely lends money. Now the borrower has issued a cheque to her which has bounced. she want to file a case under sec. 138 of NI Act.
The query is whether she is required to be registered as money lender under the Bombay Money Lenders Act?
H. S. Thukral
(Expert) 27 August 2008
No. Under section 138 NI Act, there is no such requirement.
sagar madan
(Querist) 27 August 2008
Thank you very much.
sagar madan
(Querist) 27 August 2008
However she was receving interest @ 10% p.a. and had executed promissory not when the amount was given to the borrower.
My query is whether the interest received is required to be deducted from the principal amount of Rs.50000 and the copmlaint be filed for balance under section 138?
H. S. Thukral
(Expert) 27 August 2008
A complaint under section 138 is not a suit for recovery. It is a criminal complaint. You have to mention details of the dishonoured cheque. Kindly go through the provisions of section 138 of NI Act as to time limit and procedure.
SANJAY DIXIT
(Expert) 27 August 2008
If the cheque is issued and the cheque is dishonoured for insufficiency of funds, unless the contrary is proved, it can be presumed that the cheque has been issued to discharge any debt or other liability.
sagar madan
(Querist) 28 August 2008
Thank you for clarification.
sanjay kumar patibandla
(Expert) 31 August 2008
No she is not a professional money lender. Lending money in two are three times do not comes under money lenders act.
But your client should not admit in her evidence that she is a money lender. Presumption helps you here. referthe above judgements.
2001(2) ALT (CRL)382SC
2001 STPL (DC) 35 SC
SUPREME COURT OF INDIA
(K.T. THOMAS AND S.N. VARIAVA, JJ. )
K.N. BEENA
VERSUS
MANIYAPPAN
Criminal Appeal No. 1066 of 2001 (Arising out of SLP (Crl.) No. 969 of 2001). D/d. 18.10.2001.
Negotiable Instruments Act, 1881, Sections 138 and 139 — Dishonour of cheque —“Insufficient funds” — Cheque dishonoured with remarks “Insufficient funds” — Conviction Cannot be set aside on the ground of not proving that cheque was given for any debt or liability — Burden to prove non-consideration is on accused — High Court erroneously set aside the conviction.
[Paras 6, 7 and 8]
Advocates: For the Appellant :- Mr. V. Prabhakar and Mr. M.K.D. Namboodiri,
For the Respondent No. 1 :- Mr. V.J. Francis, Mr. P.I. Jose, Mr. A. Radhakrishnan and Mr. Jenis Francis,
For the Respondent No. 2 :- Ms. Shwata Garg and Mrs. Revathy Raghavan,
2)...
2001 STPL (DC) 20 SC
SUPREME COURT OF INDIA
(B.N. KIRPAL, RUMA PAL AND BRIJESH KUMAR, JJ. )
HITEN P. DALAL
VERSUS
BRATINDRANATH BANERJEE
Criminal Appeal No. 688 of 1995. D/d. 11.7.2001.
Negotiable Instruments 1881, Section 138 — Presumption - Rebuttal - Presumption that cheque was drawn for discharge of liability of drawer is presumption of law which is ought to be raised by Court in every case. Burden of proving that there was no debt or liability was on accused. The presumption has to be rebutted by proof and not by a bare explanation which is merely plausible.Conviction held proper.
sagar madan
(Querist) 01 September 2008
Dear sanjay i m really greatful for your detailed reply. Your reply is indeed helpful to me and others. Thank you so much.
