Legal Question in Criminal Law in India
Cheque is of higher amount than amount due
On 28-10-2006 A loan of 100000/- was given payable in 12 monthly emi of 9500/- through 12 post dated monthly cheques of borrower. At the same time a guarantee is also taken and guarantor also gave postdated two cheques of Rs. 50000/- each dated 24-04-2008 and 28-04-2009 with the condition that if any cheque of borrower is returned and there is any balance amount in the loan a/c, creditor can get payment of the said cheques irrespective of whether creditor filed any case u/s 138 against borrower. On 31.03.2009 one cheque of rs. 9500/- dated 21-10-2007 remained unpaid 1. can after invoking guarantee, the cheque of Rs. 50000/- dated 28-04-2009 of guanator be presented in bank and if dishonoured , complaint u/s 138 be lodged against guarantor ?
6 Answers from Attorneys
Re: Cheque is of higher amount than amount due
Yes.
Re: Cheque is of higher amount than amount due
Already replied.
Re: Cheque is of higher amount than amount due
yes
Re: Cheque is of higher amount than amount due
The compliant is lodged but it will be the duty of the payee to prove that there was no legal obligation to pay the amount of 50,000.
Re: Cheque is of higher amount than amount due
Here, the cheque amount is more than his obligation. If, to the notice he may repay it whatever is due. if not you can limit the claim amount file a civil case but not criminal case, because there is no such higher due. ( Enforcble dabt )
Re: Cheque is of higher amount than amount due
The payee is entitled to invoke the provisions of 138 NI Act only for such amount as the drawer may be liable to pay. If you invoke the provision for a different amount than that of your entitlement, the complaint may fail and on the contrary the drawer may lodge a criminal complaint against you for cheating.
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