Section 138 NI: Unstamped Return Memo
Anurag
(Querist) 26 March 2010
This query is : Resolved
Can i File a case against a borrower who has issued a cheque the cheque got bounced.
The problem is that the customer banker has not stamped the Bounce Memo / Return Memo.
Can i file section 138 basis unstamped Return Memo
Parveen Kr. Aggarwal
(Expert) 26 March 2010
Yes. You can file a complaint under section 138 of the Negotiable Instruments Act, 1881 regarding dishonour of cheque despite the fact that the banker has not stamped the return memo in case the reason for dishonour is insufficient funds etc. The only difference will be that the presumption under section 146 of the Act shall not be available and the bank slip/return memo will have to be proved by summoning witness from the bank.
Section 146 of the Negotiable Instruments Act, 1881:
"146. Bank's slip prima facie evidence of certain facts:- The Court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved."
H. S. Thukral
(Expert) 26 March 2010
You can approach the bank to put the sig/stamp of the officer concerned. What is the problem?
Anurag
(Querist) 27 March 2010
thanks for the expert advise. I am really thankful. The reason of not going to banker because i am presenting these cheque from my borrower's location Out of delhi and thats too in bulk. The involvement of more than 40 banks and cases are handsome 700 in a batch. The problem is i want to file a case in decentralized location and the outside delhi court will only take congnizence when i will prove that the cheques are presented in that location. Trust this clarifies.
Anurag
(Querist) 27 March 2010
Further will also seek the advise if there is any other way out other than the stamp of returning bank on bounce memo to convince the court to take cognizence and accept the legal proceeding.
B K Raghavendra Rao
(Expert) 27 March 2010
You may approach the bank and ask for stamped memo of return of cheque explaining that the same is required for production in court. They would oblige.
If not, you may make the Manager of that bank as your witness and elicit from him the fact that the cheque bounced for the reason "insufficient funds".
You may also elicit this information from the Accused during cross-examination. The court would not reject your complaint merely on the fact that the bank has not affixed its stamp.
Therefore, you need not worry if the bank do not affix stamp on cheque return memo.
Kumar Thadhani
(Expert) 28 March 2010
Mr.Anurag there is no cause for you to worry if your bankerhad not put stamp on the memo slip. You can approach your banker to put the stamp even now for the cheque bounced.Or make the manager as the witness to the suit.
