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section 138 applicable or not

(Querist) 23 August 2009 This query is : Resolved 
have purchased a land from A by paying him half the amount of total consideration with some conditions like measuring the land,removing the encrochement, the land not reserved,etc.but all conditions was not fulfilled by the sellar so i issued him notice to comply the conditions in sale deed and in event of the conditions are not fulflllied i will be restrained to stop the cheque thouh he did not reply my notice and not fulfilled the comditions mentioned in the registered sale deed so i stopped the cheque, my account was having more than amount of cheque. he presented the cheque to the bank my bank sent him the memo with having remark as payment stopped by the drawer, so he sent me notice u/s 138 ni act i promptly replied to it mentining tjhe facts,but he filed with criminal case u/s 138 against me, the more of the above is that he supressed the facts of the sale deed from the magistrate,so he issued the process, here what remedy is available to me i am very much afraid because it the criminal case me.I am ready to pay the said amount as soon as he compleates the what he has agreed in the sale deed.
i have already moved to high court and the hon high court has stayed the procedings of the trial court, but i an still worried, i have filled regular civil suit also at senior division against the person.

kindly help me by sending me the recent judjements and suggestions.

please help me.

Kiran Kumar (Expert) 23 August 2009
Sameer ji,

u ve got a very good case on merits.

no liability under Section 138 NI is made out in your case.

Hon'ble SC has delivered a very important judgment on applicability of S.138 of NI Act.

Raj Kumar Khurana v/s State of (NCT of Delhi) and anr.

Criminal Appeal no. 913 of 2009 decided on 5.5.2009

SC says offence under the aforsaid sec is made out only when the cheque is returned by bank unpaid for the following reasons:-

1.) amount of money standing to the credit of that account is insufficient to honour the cheque.

2.) If exceeds the amount arranged to be paid from that account by an agreement made with that bank.

so keeping in view the above legal position, even technically no case is made out against you.

on merits there exists no legally enforceble debt against you, as required under S.138 NI Act.

the facts which have been suppresed by complainant can be brought to the knowledge of court by you.

you need not to give your precious money, have faith in courts and have faith in your lawyers as well.

KamalNayanSaxena (Expert) 23 August 2009
Mr. Kiran Kumar is absolutly correct.
Y V Vishweshwar Rao (Expert) 23 August 2009
The amount is to be paid only on complying the Conditions - Conditions not complied - Cheque is not liability cheque - payment is stopped for non complience of the Conditions -There is no case U/s 138 NI Act !
Sarvesh Kumar Sharma Advocate (Expert) 23 August 2009
u said dt some conditions are there.
is all condition was in written?
all issue of 138 n.i.act is depend over dis point.
plz. clearfy.
Adinath@Avinash Patil (Expert) 23 August 2009
I agree with Kiran Kumar.
vinjamuri ranga babu (Expert) 23 August 2009
first as per the information given by you no need to worry. take all the facts and circumstances to the notice of the court.no need to pay the money and you can also approach High Court for quash proceedings, since stop payment with regard to the reasons as stated. any how court will take care of provided, what ever you are saing correct.
Bhumik Dave (Expert) 24 August 2009
Kiranji is absolutly right
Sameer (Querist) 24 August 2009
Conditions are Mentioned in the registered sale deed in writing, and specifically it was written that prior to encashment the said conditions are to be fullfilled and the conditions were not complied till the date of the cheque, as the date was nearing i reminded the seller of the conditions to be fulfilled, by notice through my advocate,still conditions were not fulfilled so i stopped the cheque on the very same day of the cheque date, i waited till the date.
Sarvesh Kumar Sharma Advocate (Expert) 24 August 2009
ok sameer,
i receive yr massage u clearfy dt every thing was in black and white.
yr point is strong u counter claim breach of trust .
file a suit against A.
Ravi Arora (Expert) 24 August 2009
do agree with mr kiran

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