Section 138 ni act on refer to drawer deceased account

Mrs Y is liable to be prosecuted for the offence of cheque bouncing case as she was working partner also she had executed agreement in favour of A in this regard.a can also file summary suit against Y for recovery of loan amount.

can any body tell me points in favour of Y please

And most importantly.... Message was  : REFER TO DRAWER DECEASED ACCOUNT

https://indiankanoon.org/doc/17256619/

have a look at above link and read point no. 2 It is written that According to the High Court, the provisions of Section 138 are attracted only in cases where a cheque is dishonoured either because the amount of money standing to the credit to the account maintained by the drawer is insufficient to pay the cheque amount or the cheque amount exceeds the amount arranged to be paid from account maintained by the drawer by an agreement made with the bank.

So, what do you say??? My advocate and moreover Bank Chief Manager said, Mr A can file section 138 only if the check is dishounoured with message Indufficeint funds... Please tell me

There is a side issue as well, if the cheque is of firm, then the firm must be made accused before its partners, directors, etc can be made accused. 

Any Point in favour of Y??

Mr querist, everything technical can not be solved on satelite modes.

You must present full facts without hiding anything and without concealing nomenclatures;

Words "Suppose" give sense of an academic query and these are not seriously taken by professionals because in academics only few marks are deducted. In real life, things go pulse by pulse and each and every minute details matters in legal proceedings.

When lawyers take up  and argue the case, they do their best to defend their client even if accused in cases carrying life imprisonment etc and the other lawyer demands maximum sentence. So, arguements in your favour can be more than what are in favour of the complainant and these seem to be.

Favour :

1. Not actual signatory to the cheque;

2. Drawer / signatory no more;

3. Signing agreement only a routine necessity due to procedural clauses in partnership deed;

4. Not participating in financial decisions of the firm, even if taking acting part in the firm's business or routine activities;

5. Funds not received / deposited in firm's accounts and not recorded in firm's books and no creditor shown in firm's sheet;

6. May not be inheriting or fully or only person to inherit the estate of the deceased;

7. No criminal liability for another person if criminality angle kept in control upto the deceased only;

8. Signing the agreement at the most as a guarantor and guarantor not liable if recovery efforts not done against borrower - cheque presented against the deceased borrower after fully knowing that the original borrower is no more; deliberate default by the complainant;

9. Cheque series is not maintained now; No entry of this serial number in our books; complainant was himself involved in the accounting matters of the firm and the deceased and the deceased used to trust him for certain banking matters/ work where the deceased used to take the help of complainant and the complainant has himself made misuse of fiduciary relationship with the deceased; Letter was given by the deceased to the bank although not acknowledged by the Bank; misplaced letter given to the bank; letter w

Continued ...

9. Deceased person fully settled the liability, if any, towards the complainant during his lifetime either in cash or consideration; deceased person rescinded the agreement during his lifetime through written communication which are in possession of the partner and can be produced before the court whenever required by the court under other surviving partner's affidavit only; the surviving partner had ceased to be under legal obligation towards the agreement signed in 2011 by virtue of further developments which obliviate the surviving partner from being held liable for the agreement done in 201; there are various acts of the complainant subsequent to the signing of the agreement which purportedly convey as if the complainant had no further desire to hold the surviving partner liable under the agreement or not to press the convenants under the agreement against the surviving partner;

10. A.  "REFER TO DRAWER DECEASED ACCOUNT" means the surviving partner never participated in banking transactions.

      B.  The Complainant himself was an active partner in the firm before and during the lifetime of the deceased and handled banking on behalf of deceased;

Do not decide everything by yourself; Competent lawyer will use one best tool which fits in the situation; Nothing surprising; many more defences may be found and taken up after careful scrutiny of the complete case file;