cheque dishonour case

Mr.M.Kaur, sorry your case would not come under the preview of section 138 of N.I.ACt, on remarks " Drawers signature differs".

These only material alterations only, so sec-138 will not attract.

The bank  liability in returning the cheque with the abovementioned remarks- nothing, justing seeking clerfication, where amount is huge or less. Or where amount will be drawing more than 5 lak.

Further I leave to me learned members to psot their feedback.

 

Regards

Basavaraj.R

issue notice to the drawer by stating the same facts of the endorsement of the facts and demand for payment or issuance of fresh cheque or asking him to get honour the cheque by meeting to the bank officials if any compliance is there. after getting the reply ,if it positive well and good otherwise you may go for the case of cheating.

If the cheque is returned with the remarks other than insufficient funds but as a matter of fact there were not sufficient funds in the account of drawer , the case would be covered under section 138. 

No

It is possible to invoke sec 138 of N.I .Act. 

In this case, you will have to plead that the person has knowingly and willingly issued cheque with wrong signature. However, the burden is on you to prove it by bringing proof that it was this person who has signed in this fashion.

You cannot file a case u/s 138 of NI aCt, but you can file a cheating case against the person who issued a cheque to you.

Don't go for section 138 and issue a notice for payment. If he deny payment then go for complaint u/s 420 of I.P.C.

ON THE OFFENSIVE STANCE,  the counsel of the accused can always say that the cheque (in question)  was stolen or lost or misplaced and the complainant  took advantage and forged the signature of the accused,  HENCE the difference in signature of the accused.

 

HOWEVER,    " I F "    the complaintant can prove that the accused is a chronic  & habitual violator of the N.I.Act and deliberately issues cheque with signature variations,  THEN the complaint ALSO can be filed u/s 420 IPC and another u/s 138 of the N.I.Act.    FOR this the complainant will have to obtain Bank Statements of the Accused's account alongwith other false-signature cheques of the accused.   For evidence other inputs in the cheque (date, payee name, words and figures)  must match the hand-writing of the Accused, to nail him.     Also to get  bank statement of accused to prove that his account had in-sufficient balance to honour cheque and that accused coerced bank to return cheque due to "signature mismatch".

 

All documentary evidences required for this and the onus of it is on the Complainant to prove all above,  to invoke  process of summons.

 

FURTHER,   " I F "    there is a genuine  signature difference of the accused on his cheque  AND  IF there is sufficient balance in the account of accused, THEN the provisions of the N.I.Act    CANNOT be invoked.

 

Keep Smiling .... Hemant Agarwal
 

Apex Court in the case of Vinod Tanna and another v. Saher Siddiqui and others, reported in (2002)7 SCC 541 held that dishonour of chque because of incomplete signature of the drawer do not attract Section 138 of the Act and criminal proceedings initiated under Sections 138 and 142 of the Act required to be quashed and set aside.

Thank you all. Agreed no proceeding can be initiated under sec 138 NI ACT.

but another part of my query was that if the drawer himself communicated to the payee that the cheque issued by him is superfluous and that it will be returned by the banker. in that case what presumptions can be drawn against him?

he knew very well that the cheque wiil be returned.

then what is the remedy?

Adv.Manjeet Kaur,

 

Please re-read my post (above dated 17th July).  I have answered it considering all points in your initial post.

 

Documentarily Prove that the drawer is a chronic,  habitual & deliberate offender and you have a case u/s 420 IPC and even u/s 138 N.I.Act.

 

Keep Smiling .... Hemant Agarwal