SECTION 138 OF NI ACT
AMMAYYA
(Querist) 31 January 2009
This query is : Resolved
If the amount expressed in dishonoured cheque is more than the amount due to the lender(bank), can lender(banker) initiate legal action u/s 138 of NI Act ?
A. A. JOSE
(Expert) 31 January 2009
Yes, the Banker can initiate proceedings please.
ARVIND JAIN
(Expert) 31 January 2009
ONLY TO THE EXTENT OF DEBT AMOUNT.
Uma parameswaran
(Expert) 31 January 2009
The bank can initiate action for the amount mentioned in the cheque.
Ravi Arora
(Expert) 31 January 2009
yes it is possible as par Delhi High Court ACC 2007 13 " Notice demanding the balance amount which was lesser than the amount of cheque would not make the notice invalid"
KANDE VENKATESH GUPTA
(Expert) 31 January 2009
No. The drawer of the cheque cannot be convicted u/s 138 of the N.I.Act in view of the specific language under the Act. The cheque must be drawn in discharge of the legally enforceable debt. Here in this case, the amount covered in the cheque is not legally enforceable. Hence, the prosecution u/s 138 cannot sustain.
MANISH
(Expert) 12 February 2009
Pyaare Ammayya,
Section 139 of NI Act clearly tells about the presumtion clause. So, it is clearly presumed that the drawer owed some legal liability as is envisaged in the cheque. So, the complainant may file complaint, however, the complainant may not recover the amount more than what was due, whether it was envisaged in the cheque. But the same can only be led through evidences, which is a far process during the proceedings. Moreover, the plea may be given about the differences in writing of the payee name and the signature and in the writing of the amount, which may be a good evidence in your case. This may prove the malpractice of the bank played on you.
