• NI138 - Account closed but bank issued insufficient fund

Sir, Accused replay notice and Statement in the court is that account is closed 2 years back and never issued cheque. However I have received a cheque return memo with "Insufficient Funds" on twice presentation. Question is how can a bank give Insufficient Fund memo for closed account cheque. What happens to NI138 case that we r just in cross stage now where accused filed a application calling Bank Manager to court along with statement of account, etc... Thanks.
Asked 2 years ago in Criminal Law from Bangalore, Karnataka
Once cheque is issued and fund insufficient as per bank's Note then you should proceed by sending Legal Notice and file a case as per provision of N.I.Act.One judgment reference:--

Bombay High Court
Nagpur Bench : Nagpur vs Sitabuldi, Nagpur on 27 March, 2012
Bench: A.P. Bhangale
1 Cri. Appeal 557/06

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH : NAGPUR

Criminal Appeal No. 557 of 2006

Appellant : Yugalkishore Maniklal Bhattad (HUF), through its Karta Yugalkishore s/o Maniklal Bhattad, aged about

52 years, occ: service, resident of Tekdi Line,

Sitabuldi, Nagpur

versus

Respondent : Shrikrishna Gupta, Proprietor,

M/s Maharashtra Lime Trading Company,

Chuna Oli, Maskasath, Itwari, Nagpur

Mr S. V. Bhutada, Advocate for appellant

Mr R. K, Tiwari, Advocate for respondent

Coram : A. P. Bhangale, J

Dated : 27th March 2012

"Respondent-accused is held guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and he is directed to suffer simple imprisonment till rising of the Court and to pay a fine in the sum of Rs. 60,000/- (Rupees Sixty thousand only), in default, to suffer rigorous imprisonment for three months. On request made by learned counsel for the respondent, respondent is granted four weeks' time from today to pay the amount of fine. If the amount of fine is recovered, the same shall be paid to the complainant as compensation in view of provisions of Section 357 of the Code of Criminal Procedure."
Minansu Bhadra
Advocate, Kolkata
266 Answers
23 Consultations
4.8 on 5.0
Send legal notice and then lodge 138 NI Actu
Soumya   Kundu
Advocate, Kolkata
50 Answers
0 Consultations
4.8 on 5.0
Send legal notice and then lodge 138 NI Actu
Soumya   Kundu
Advocate, Kolkata
50 Answers
0 Consultations
4.8 on 5.0
Accused has given his reply keep it and cross examine him on this along with bank manager of the concerned bank. then let me know of the outcome. proceed on that basis only.
Kiran N. Murthy
Advocate, Bangalore
765 Answers
50 Consultations
5.0 on 5.0
you can call bank manager as witness of your case and then cross the accused
Rajeev Bari
Advocate, New Delhi
1506 Answers
92 Consultations
3.5 on 5.0
if cheque is dishonored despite there being no account then it would not amount to offence under section 138 of NI act however you should issue notice to the concerned bank manager and take action as per law before the holder of the cheque initiates any action against you.
Ananth Kumar
Advocate, Bangalore
122 Answers
57 Consultations
4.5 on 5.0
The application has to be filed to the court for directing the bank manager to appear. If no account existed then a case under 138 NI Act is not made out. The first emphasis of accused should be to get himself exonerated from the case, and then he may take recourse to his remedies in law against complainant.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0
r u the complainant or the accused in the said case, or is it a hypothetical question that you want an answer from us.
If u r the accused your remedy against the complainant is only after the complaint is dismissed against you and not in the same case. 
If you are the complainant then it is for you to establish with cogent evidences that the cheque issued by the accused was not honoured by the bank and the same was dishonoured. If you fail to prove this then you stand to loose the case.
The bank manager can be either summoned by you or the accused to prove this point. Wait for the out come of the cross examination and then pose your question.
Kiran N. Murthy
Advocate, Bangalore
765 Answers
50 Consultations
5.0 on 5.0
that fine,then why do you worry
Rajeev Bari
Advocate, New Delhi
1506 Answers
92 Consultations
3.5 on 5.0
fight the case on merit, no need to worry, the burdan of prove lies upon accused to proved that he/she did not issue the cheque against discharge his/her legal liability.
Nadeem Qureshi
Advocate, New Delhi
3534 Answers
130 Consultations
4.9 on 5.0
Even if the cheque is dishonored due to "Account closure", Section 138 of NI Act attracts.
Sandeep Hegde
Advocate, Bangalore
361 Answers
97 Consultations
4.8 on 5.0
Any variance in reply to legal notice and written statement can be used by you to your advantage in court.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0

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