Legal Question in Banking Law in India

138 negotiable instrument act

Brief fact:

1- my father, uncle-i and uncle-ii made an unregistered aggrement for family settlement in their hand writing in 2006

2- my mother given a cheque to uncle-ii.

3- family settlement failed. My mother stoped payment.

4- uncle-ii complaint in 138 niact, 420 ipc in 2006.

5- uncle-ii said in complaint that he got cheque in (understanding) samjahuta with my father.

5- magistrate summoned and bw issued. I surrender mother and bail granted.

6- civil suit is also pending for partition from 1990 by uncle-ii.

7. What is the debt and liability of my mother, she is joint account holder with my father.

8- what is the remedy for it in 482 crpc. What ground should i take?

Note:- this is my real family matter.

Please help me friends. Get answer as soon as possible.


Asked on 3/31/08, 11:57 pm

5 Answers from Attorneys
Ankur Mittal MITAL & MITAL Advocates

Re: 138 negotiable instrument act

the issue whether it would constitute a debt or otherwise is a subject matter of trial [after evidence].

file 482 and u can pursuade the court to grant stay of proceedings in ur favour. meanwhile get the issue decided in civil court.

or in hte meanwhile, u can seek her exemption from presonal appearance;

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Answered on 4/01/08, 7:42 am
Aniruddha Pawse Aniruddha.P.Pawse Advocates

Re: 138 negotiable instrument act

Ask court to grant stay. I Dont think that your mother will be held liable u/s 138.

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Answered on 4/01/08, 11:12 am

Re: 138 negotiable instrument act

Details are required to be examined.However,in my opinion no case u/s.138 NIAct is made out.Contact with details,professional charges are applicable.

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Answered on 4/01/08, 1:17 pm
Homi Maratha N.N. Maratha & Co.-Advocates

Re: 138 negotiable instrument act

Well in this case your mother wont be liable u/s 138. You should engage a local lawyer and ask court to grant stay.

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Answered on 4/01/08, 2:12 pm
J. Radhakrishnan independent Practice

Re: 138 negotiable instrument act

Your mother can file an application in the High Court under Sec.482 of the Criminal Procedure Code explaining that it is only a civil dispute in view of the civil court suit also and being a matter relating to partition and get the complaint under Sec.138 N.I.Act quashed. In the meanwhile, contest the case before the criminal court stating that the cheque was not issued in discharge of a debt and the consideration for the issue of cheque having failed on account of the family arrangement for which the cheque was issued has failed.

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Answered on 4/01/08, 9:29 pm


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