Dishonour of cheque
PARESH DESAI
(Querist) 07 September 2011
This query is : Resolved
I WAS A GOOD CLIENT OF A BANK. BANK OFFERED ME LOAN. I TAKE LOAN AND ISSUED THEM CHEQUES. I HAD A LAON OF OTHER BANK ALSO. I GAVE OTHER BANK TO AVAIL ECS FACILITY FROM FIRST BANK FROM MY SAVINGS AC. IN 2006 IN MONTH OF JANUARY MY FIRST BANK PASSED THREE ECS OF OTHER BANK. I HAD NOT MADE A PROVISION OF 3 INSTALLMENT IN ONE MONTH. MY ACCOUNT WAS IN DEFAULT AND HEAVY PANELTY WAS CHARGED BY MY BANK IN SAVINGS AC. I HAD NO OPTION TO STOP OPERATING MY ACCOUNT. PDCS WHICH I ISSUED TO MY FIRST BANK FOR LOAN I MADE A STOP PYMT. AND I STARTED GIVING PYMT FROM OTHER CHEQUES. NOW BANK UTILISED MY PREVIOUS CHEQUES AND FILLED 138 CASE AGAINST ME.
I DID NOT RECEIVED A NOTICE AND SUDDENLY I GOT SUMMON FROM A COURT.
ACKNOWLEDGEMENT SUBMITTED BY BANK HAS NOT MY SIGN. I DID NOT GOT TIME TO PAY BANK WITHIN 15DAYS FROM NOTICE AS PER PROVISION OF ACT138. WHAT STAND I CAN HAVE IN COURT. PL. GUIDE ME
prabhakar singh
(Expert) 07 September 2011
"I DID NOT RECEIVED A NOTICE.......ACKNOWLEDGEMENT SUBMITTED BY BANK HAS NOT MY SIGN."
If you can prove this part of your statement in court then the complaint shall be dismissed,and no conviction order would be passed against you.
ajay sethi
(Expert) 07 September 2011
i agree with mr prabhakar singh
PARESH DESAI
(Querist) 07 September 2011
Thanks Singh sir, Yes I can prove that acknowledgement has not my sign. Sir can you provide me any supreme court judgement supporting this?
Guest
(Expert) 07 September 2011
I also agree with the opinion of Shri Prabhakar Singh.
PARESH DESAI
(Querist) 07 September 2011
I CAN PROVE THAT SIGN ON RPAD ACKNOWLEDGE IS NOT MINE. AND I HAVE NOT RECEIVED A DEMAND NOTICE. HOWEVER BANK HAS FILED 138 CASE AGAINST ME. PL. HELP ME PROVIDING SUPREME COURT JUDGEMENT SUPPORTING THIS FACT.
R.Ramachandran
(Expert) 07 September 2011
It is not necessary that it should be your signature. It can be the signature of anybody in your house. Please do not rely heavily only on this aspect. Meet the case on merits, if you have any appropriate defence.
R.Ramachandran
(Expert) 07 September 2011
I may further add, that from the complainant's point of view the notice stands served because (i) it was sent by registered post to the last known address of the noticee (ii) the registered letter was not received back unserved (iii) further more, there was an RPAD acknowledgement with Postal stamp. These are sufficient to claim proper service of notice as far as the complainant is concerned.
Advocate. Arunagiri
(Expert) 07 September 2011
It may the case that your family members or servant would have received it. You can deny your signature, but, service of summons to your address is enough to initiate prosecution.
Even if you say that no body had received from your house received it, file a discharge petition.
Raj Kumar Makkad
(Expert) 07 September 2011
In the light of your clarification, notice stands received to you, however, you may plead innocence on very first hearing and may offer to pay amount of cheque then the complaint shall automatically stand as dismissed.
PARESH DESAI
(Querist) 08 September 2011
RESPECTED EXPERTS,
AS I HAVE NOT RECEIVED A NOTICE AND ANY BODY OF MY HOUSE AND RPAD ACKNOWLEDGE IS NOT SIGNED BY ANY OF OUR HOUSE, THAT MEANS IT IS MANUPLATED. WILL THIS FACT WILL STAND IN MY DEFENCE.
ALSO IF I SUBMITT AMOUNT OF CHEQUE RETURNED TO A COURT IN PRESENCE OF MEGISTRAT WILL PUT ME IN SAFE CONDITION?
PL. REPLY SOON
Arif Iqbal
(Expert) 08 September 2011
I agree with R Ramachandran and Arunagiri. The notice may be deemed to be served upon u. It is not a good defence in ur case.
R.Ramachandran
(Expert) 08 September 2011
In fact, I would suggest,if you are ready to pay the amount of the cheque, better take out a Demand Draft in favour of the complainant one or two days in davance of the date of hearing (giving of another cheque will not be acceptable both to the complainant as well as the Magistrate). Make out an application clearly bringing out therein that you have not received the notice. But having received the summons, you are now making the payment by means of the Demand Draft. In view of this the case may kindly be dropped and I may be discharged.
On this basis, there is every possibility that the Magistrate will appreciate your bona fide, take the DD and hand it over to the complainant and drop the case and discharge you.
PARESH DESAI
(Querist) 08 September 2011
THANK U SIR,
I WILL FOLLOW YOUR ADVISE.
BUT HOWEVER I AM A VICTIM OF THIS WHOLE ISSUE. BANK IT SELF HAS MAKE MY ACCOUNT IN DEFAULT. AND IF I HAVE TO OPERATE IT I WILL BE FORCED TO PAY THEM WRONG MONEY IN WAY OF PANELTIES. ALSO MY CIBIL REPORT IS SPOILED BECAUSE OF THEIR MISTAKE AND THEY UNDERSTAND THEIR MISTAKE. CAN I INCORPORATE THIS FACT WITH THE DISHOUNOUR OF CHEQUES BECAUSE IT WAS STOPPED.
SHALL I HAVE TO FILE A CASE AGAINST THEM IN CONSUMER COURT?
KINDLY ADVISE IN DETAIL.
R.Ramachandran
(Expert) 08 September 2011
The present case is limited only to the cheque dishonour. It has nothing to do with CIBIL report - whether it is right or wrong etc.
You have to separately request the bank to remove your name from the CIBIL. In fact the CIBIL data is to indicate that you are a troublesome customer. It alerts the other bankers suitably whenever they have to deal with you.
Regarding your CIBIL report, you have to take up separately, and certainly not in this application.
ajay sethi
(Expert) 08 September 2011
you should take search of the court records . generally at the time of verification of complaint the court calls upon complainnat to rpoduce original documents . it is only after verification that summons are issued . corsscheck the verification staement . it must be containing reference to notice sent by registered post ad and duly received by you .
in such a case you deposit amount in court on first date of hearing .
PARESH DESAI
(Querist) 08 September 2011
Respected Sir,
This is a matter of year2007.I received copy of doccuments on last date. Today I personally appear in the court to submit demand draft of full payment with a request application. But megistrat refused to receive it and hand over back to me saying he has no authority to clooect payment. Pl. guide me further.
R.Ramachandran
(Expert) 08 September 2011
Earlier you never said that the matter of year 2007.
In any case, I never wanted you to give the DD to the Magistrate. I only wanted you to mention in the application that you are making the payment through DD to the complainant.
Now that the Magistrate has refused to take the DD (naturally he is not supposed to take the DD from you), you consult your bank / bank's lawyer and find whether they will withdraw the complaint/case once payment is made through DD. After knowing their view proceed further.
PARESH DESAI
(Querist) 08 September 2011
I HAVE DISCUSSED MANY TIME TO THE BANK THEY ARE READY FOR SATTLEMENT WITH PANELTY AMOUNTS TO 3 TIMES TAHN CHEQUE AMT. ALSO IF I PAY IN INSTALLMENTS WHERE 1ST INSTALLMENT AMUNTS TO THEIR DEMAND NOTICE UNDER SEC.138. THEY ARE SAYING THEW WILL WITHRAW CASE AFTER FULL PAYMENT WITH PANELTY. WHAT SHOULD I DO?
R.Ramachandran
(Expert) 08 September 2011
What is the amount of the cheque?
PARESH DESAI
(Querist) 08 September 2011
AMOUNT OF CHEQUE IS RS.25638. THEIR SATTLEMENT AMT. IS RS.75500. THEY WILL ISSUE A SATTLEMENT LETTER. BUT WILL WITHRAW A CASE AFTER PAYING THEM IN FULL AMT.RS.75500.
PARESH DESAI
(Querist) 09 September 2011
DEAR EXPERTS,
PL. GIVE ME YOUR OPENION.
R.Ramachandran
(Expert) 09 September 2011
I think you have handled your matter very shabbily. When you are prepared to give the money now, one does not know what prevented you from doing it in the year 2007 itself when you received the summons.
It is not three times that they want the penalty. It is only two times. The total settlement includes your original amount of Rs. 25638/- also. Therefore why are you projecting it as three times penalty?
In any case, since the case is hanging fire for the past nearly 5 years, it is you who has to take a decision whether to pay the entire amount being demanded by the bank or to continue to contest the matter. Frankly, there does not seem to be any plausible defence in your side.
So, there is no legality involved in this issue. Even the court can impose fine on you. Therefore, you have to decide the matter yourself.
PARESH DESAI
(Querist) 09 September 2011
ORIGINALLY I HAVE BECAME A VICTIM OF BANKS MALL PRACTICE. THEY DEPOSITED 3 ECS EVEN THOUGH I WAS A REGULAR PAYER TO THEM. THEY MADE ME A DEFAULTER. I WENT THEM MANY TIMES BUT THEY DID NOT SOLVED. AND GO ON IMPOSING PANELTY. EVEN SOLUTION WAS IN THEIR HAND THEY DID NOT SOLVED AND MY EGO WAS NOT READY TO PAY THEM WRONG. NOW I ONLY HAVE TO PAY THEM PANELTIES AND SATTLE WHAT THEY WANT? IS IT ONLY A WAY?
PARESH DESAI
(Querist) 09 September 2011
KINDLY GIVE YOUR FINAL OPENION
R.Ramachandran
(Expert) 09 September 2011
Try one more time with bank for accepting twice the cheque amount instead of Rs. 75000/-
If they agree it is ok. Otherwise you have no other go than to give the amount demanded by them if you want easy closure for the case.
Otherwise you can tell the court on the next date of hearing that you are ready to pay the cheque amount and request the court for lesser penalty.
NOW YOU HAVE TO SELECT WHICH WAY YOU WANT IT. No more suggestion from me.
