Cheque bounce
pankaj shekhawat
(Querist) 15 May 2014
This query is : Resolved
My case details u/s 138, trail court judgment against me and appeal dismiss by delhi high court as below:-
"loan given 14-9-2005 RS. 60000, accused admitted- signature on receipt, pronote, signature on undated cheque and given at the time of loan, complainant admitted write date 26-10-2009 on same day"- CASE DETAILS.
"complainant have implied authority to write date on cheque, this is not materiel alteration we have many judgments about this matter)complainant write date on undated cheque without written authority from accused after 4 year, so trail court acquittal the accused "-- TRAIL COURT JUDGMENT AGAINST ME.
" It appears to the Court that the Petitioner was unable to prove his basic contention that the on the date that was filled up by him in the cheque, the Respondent owed him a sum of Rs.60,000. If it pertained to a loan of 14th September 2005, then clearly as on the date of the said cheque, the loan was time barred. In other words, it was not a legally enforceable liability on the date mentioned on the cheque, i.e. 26th October2009."- DELHI HIGH COURT JUDGMENT AGAINST ME.
My arguments with judgments is that "TIME BARE" (recovery of money) is civil matter and its different from criminal proceeding u/s 138, for clearing my point of view some Para of supreme court & Karnataka high court judgments as below-
"This is not a case where the cheque was drawn in respect of a debt or liability, which was completely barred from being enforced under law. If for example, the cheque was drawn in respect of a debt or liability payable under a wagering contract, it could have been said that that debt or liability is not legally enforceable as it is a claim, which is prohibited under law. This case is not a case of that type. But we are certain that at this stage of the proceedings, to say that the cheque drawn by the respondent was in respect of a debt or liability, which was not legally enforceable, was clearly illegal and erroneous".-- Supreme Court- A.V. Murthy vs B.S. Nagabasavanna on 8 Feb. 2002.
"A criminal prosecution is neither for recovery of money nor for enforcement of any security etc. Section 138 of the NI Act is a penal provision the commission of which offence entails a conviction and sentence on proof of the guilt in a duly conducted criminal proceedings. Once the offence under Section 138 is completed the prosecution proceedings can be initiated not for recovery of the amount covered by the cheque but for bringing the offender to the penal liability"-- Supreme Court-M/S. Bsi Ltd. & Anr vs Gift Holdings Pvt. Ltd. & Anr on 15 February, 2000.
"Therefore, in the present case on hand, notwithstanding that the appellate Court has found that the amount due from the respondent was a time barred debt, which could not be recovered by recourse to filing a civil suit for recovery of such money. The cheque issued in discharge of such a debt was not a legally enforceable instrument, cannot be accepted. The logic that nothing prevents a man from repaying a time barred debt, voluntarily, and in the place of legal tender, if the very man issues a cheque in due repayment of such a time barred debt, it is a promise made to discharge such a debt by virtue of issuance of the cheque. Therefore, the cheque not being disputed as having been issued by the respondent is a voluntary payment made, of a time barred debt. It cannot, therefore, be said that it was not enforceable and if the cheque has been dishonoured for want of sufficient funds, it is clearly an offence punishable under Section 138 of the N.I.Act. The appellant having complied with all other formalities in brining the complaint, the same could not have been rejected on the ground that the payment was in respect of a time barred debt. The authoritative opinions expressed herein above would support this view."-Karnataka High Court- Shri Sangameshwar Chits Pvt Ltd vs Sri.G R Marigoudar on 25 September, 2013.
Please advise me. should I appeal to supreme court with above view/arguments or not.
ajay sethi
(Expert) 15 May 2014
no dont appeal tot he SC . the 138 Ni has been decided against you as you have filled in particulars in the cheque without any authorisation . the material alterations would straight away invalidate the cheque in question. it is an admitted fact that you have filled in date . as on said date there was no debt due and payable . hence your case has been rightly dismissed
Nadeem Qureshi
(Expert) 16 May 2014
I completely agree with Mr. Sethi and secondly you have to spend money more then your case amount before SC.
Rajendra K Goyal
(Expert) 16 May 2014
Consult a senior Supreme Court Lawyer and show him all the documents. On the face it appears a weak case.
T. Kalaiselvan, Advocate
(Expert) 18 May 2014
Agreed with the expert Mr. Sethi's opinion on the subject, a more precise advise cannot be given than this, thus if you still intend to proceed, you may but it may at the cost of losing your case, decide.
