Cheque bounce

If cheque issued towards surety, sec 138 of NI Act will not attract

Surety is held to be liable only when the primary holder is in default to pay the installments / loan amount. In your casr you have not specified wether you had issued the cheque towards the surety or you are just the surety to the loan agreement. In case of the later, you shall be held liable and need to get the good done.

Once a process ; summons is issued you have to go through trial.

The surity is laible or not has  to be proved by contradicting the evidence of the complainant.

The issue of cheque is undisputed.  So far as the point whether the cheque issued is for discharge of legally enforceable debt is a matter of evidence.  Explicitly or impliedly, if the original debt for the discharge of which the surety signed, is legally enforceable debt and in discharge of the same the surety gave a cheque duly discharging the same, the surety is in the shoes of borrower, voluntarily taken upon himself to be liable.  The very fact that the cheque is issued in due discharge of the debt of the borrower, leaves no room to question the enforceability of the debt as it is impliedly undispute and agreed, and the consequence is the issue of cheque.  After knowing very well and agreeing to pay on behalf of borrower, by virtue of being a surety, and actually paid the debt through the bounced cheque, it does not warrant going to the original question of enforceability of debt.  One is estopped from doing so.  An after thought and post-performance dispute can not undo the performance of agreed contract of paying himself in lieu of borrower, if he fails to pay, and it is no doubt the borrower failed to pay and thus surety came forward and agreed to pay and in fact paid the debt too.  The question is the payment already made to the satisfaction of the debt being through the cheque has not been realised due to insufficiency of funds in the designated account and it is to be made good and hence legally enfoceable debt, which the surety willfully taken upon himself duly discharging the original borrower debt.  Otherwise, the cheque cant be said to have been issued gratis, advance, gift without he becoming liable to pay under any law or circumstance.  This is how, I think the case is maintainable and the court has rightly issued the process.  However, my colleage learned friends may please comment on the error in my thinking, which I would very muchl appreciate and learn.  Thanking you.

Cheque issued by A to clear B's liability comes under "Other Liability". So per say the drawer (or surety) in this case is liable under S.138.

Rest all is matter of trial. Yes security cheque given may not attract conviction on face of it, but again it is a matter of trial.

THANKS EVERY BODY FOR THEIR REPLIES, ACCORDING TO ME SEC.138 OF N.I. ACT IS FOLLOWING CRIMINAL PROCEDURE AND HOW CAN A CRIMINAL LIBILITY BE TRANSFERRED HENCE IF COMPLAINANT WANTS TO RECOVER FROM SURETY HE CAN RESORT TO CIVIL PROCEDDINGS AND NOT CRIMINAL PROCEEDINGS HENCE THIS CASE SURETY SHOULD NOT BE HELD LIABLE.

The surity is liable due to VICARIOUS LIABILITY.  And since process is issued you have to face trial. You can not eascape by just argument that surity is not liable.

If cheque is issued by surety in discharge of liability of borrower, he will be liable under s 138 n i act, if his own cheque ie. surety's cheque is dishonoured. please see citation, it may help you reaching any good decision at your own level  ICDS Limited v. Beena Shabeer and Anr. MANU/SC/0669/2002 : (2002) 6 SCC 426 : AIR 2002 SC 3014.