138- signature differs

NO. The act is clear. Cheque should have been issued in repayment of debt and it should have bounced for want of funds in the account. Then only sec 138 can be invoked.

138 only invokes when it is proved tht the cheque was not honoured for want of fund and the cheque was given to meet the debt.

Check up whether the drawer had sufficient funds in his account.?  Aperson may issue a cheque without having sufficient funds in his account and yet to escape the mischief he may put  different  signatures. Complaint could be maintainable. 

 

 

 I agree with Mr. Thukral

Dear Mr. Sunny,

Section 138 of NI Act can be invoked only when a cheque was issued and it got dishonoured, due to insufficiency of funds or account closed, or any other reason, for which it is clear that the drawer is having some malintention, or played fraud while issuing the cheque.
Now if you see that the signature differs or same, then it could be verified through leading the evidences, which is only a matter of trial.
So, the answer for your problem is that, section 138 could be invoked even when the signature are quite similar, but still differs, ... But just think about the future of the case.!!!

Honourable Karnataka HighCourt held in one reported case that Section 138 will atract even though signature differs, since there is a posibility that the accused might mave signed diferrently to deprive the complainant from recovering the amount. Burden is o the accused. 

sir,

           gist is that whether sufficient fund was there or not.it is also duty of bank to bring all these to notice of person who issued cheque.opportunity should be given.after that if mensrea is proved s.138 will attract.

honour of cheque for insufficiency, etc., of funds in the accounts

Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence "

 

But I am not having the judgement in favour. but quash not allowed by this reason.

 Negotiable Instruments Act, 1881, Sections 138 - Quash - Not Allowed - Question of Fact -  Dishonour of cheque - Dishonour because of " signature not tally"- Offence under section 138 prima facie made out - Question as to whether signatures of drawer did or did not tally, a question of fact - Such question to be decided at trial.(Para 11)

Lilly Hire Purchase Pvt. Ltd., Jalandhar Versus Darshan Lal

1999 STPL(DC) 311 P& : 1999 DCR 416 : 1998(1) BC 59 : 1997(2) BC 239 : 1997(3) CCR 771 : 1997 Cri LJ 4603 : 1997(1) RCR(Criminal) 580 : 1997(89) CC 663 : 1997(1) CCC 167 : 1997 ISJ(Banking) 193

COARM : P.K. JAIN, J.

Date of Decision :1/10/1997

hi,

it is a question of fact, and is to be decided during the course of trial and it is for the accused to prove that the alleged signature is a forged one or not of his own

RANGABABU EXPLANATION IS CORRECT...

1.   A cheque is a cheque, when all the parameters under the Banking Act is complete.

 

2.   If the cheque is torn, mutilated, wrongly spelled, under-dated or over-dated, words and figure differ, AND SIGNATURE DOES NOT MATCH or DIFFERS, unauthorised or invalid signature, a/c closed, over-writing etc....  THEN the cheque is NOT A VALID CHEQUE.
(check Section 5)

A CHEQUE WHICH IS NOT A "VALID CHEQUE",    "IS NOT A NEGOTIABLE INSTRUMENT",  under the Banking Act and under the "Negotiable instruments Act".

A cheque which is not valid and incomplete cannot be "bill of exchange" and further cannot be payable on demand.  (check Section 6)

3.  FORGET whether there is balance in account or not, that is later on.  Firstly the instrument (i.e. the cheque) has to be a legally valid negotiable instrument, under the parameters of the Act's.   If the instrument (cheque) is not valid (good) under the law,  THEN THE CHEQUE IS A   " D U D ", and the provisions of the Negotiable Instruments Act does not apply (Conditions apply) and no prosecution can take place.

4.  HOWEVER,  if the complaintant has sufficient grounds and conclusive evidences, then the complaintant can seek recourse under the I.P.C., on charges of Cheating or may be even Fraud.

Keep Smiling .... Hemant Agarwal

 

First send a legal notice and demand your money and if within 15 days he did not pay then it will be a clear proof of his intention.

adv.kamal.grover@gmail.com

1.  In matter of  "SIGNATURE DIFFER",  A legal notice u/s 138 of the N.I.Act,  CANNOT be issued within the provisions of the N.I.Act.
The  "15 days payment notice"  parameters under the N.I.Act, do not get attracted, when the  "signature differs"  and the cheque automatically becomes an  "invalid"  instrument, as described earlier.

2.  The cheque holder may issue a notice  under the I.P.C., and seek or directly file for remedy, if appropriate proof of Fraud / Cheating is available.

Keep Smiling .... Hemant Agarwal

Signature differes is not covere under section 138  of N.I.Act.