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varghese (drvargheseae@gmail.com)     05 March 2011

CHEQUE AMOUNT PAID IN ADVANCE, BUT AGAIN PRESENTED AND BOUNC

 

After issuing the cheque, party told me "what shold I do withthe cheque" please give me money"  seeing his urgency, sent the money but he didnt return the cheque and kept  till he got all the payment. After that he submitted cheque to the bank, inspite of my repeated request to return the cheque. Self, sensing the foul play, stopped the payment and withdrew all the money kept in my a/c on 12.10.2010 and the drawee of the cheque presented the same to the Bank on 15.10.2010.

Now, he has filed a case against me under section INIA 138.

  When the purpose of the cheque has already been met, question of resubmission and bouncing doesn’t arise at all.

Moreover, . 'stop payment' was not due to insufficiency or paucity of funds but payment was stopped because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque then offence u/s 138 is not made out.  



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 8 Replies

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     05 March 2011

If process is issued by the court appear and contest , you will win.

Ananda krishnan (Lawyer)     05 March 2011

 The notice under 138 of NI Act is a madatory process and there you get a chance to say the truth. But there is no wisper about the notice in your statement.Whether you replied?The evidence for payment of money based on the alleged cheque should be produced before the court and plead the same. If the court believe your version that the money paid is on account of the cheque then you will be relieved. Chance is 50:50.

V.S.Massaaun (legal advisor)     04 April 2011

yes , you can win  as per sec  138   is applicable where the cheques return  due to insuffucent funds or exceed the amount arragned  you can mention this in the reply of notice , now the opposite have one alternate to file a recovery suit  uner order 37 of CPC  , which you have  yo defend

Alok Vashishth (Sr. Manager)     20 April 2011

But, how can it be proved that liability has been settled in cash. Court will go with the evidence.

vijay shinde (Advocate/lawyer)     22 April 2012

if you have documentary evidence that you had already paid the due amount. you have chances to win the case.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     23 April 2012

You have to be alert in trial , the complainant has to prove legal liablity.

R Trivedi (advocate.dma@gmail.com)     24 April 2012

Mere stating without proper receipt/evidence that you paid in cash, will not help you. Everyone will do that.

 

Did you make any written request demanding your cheque back ? Do you have any circumstantial evidence for giving cash ? More importantly why is he doing this ???

 

The presumption under S.139 is with respect to legal liability, you have to rebut it, you have to probablise it. Mere statement will not help.


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