Civil Procedure Code (CPC)

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(Querist) 24 November 2010 This query is : Resolved 
Dear Friends,
My client has given a cheque for Rs. 10,000/-for his debt. Subsequently,he repaid a sum of Rs. 7,000/- for partial settlement of his due. But, the creditor has filed complaint u/s 138 against my client for Rs. 10,000/- by using the cheque was given by my client. In fact my claint has paid Rs. 7,000 and his actual due is 3,000 only. But, the creditor has filed for 10,0000/- and he has used the cheque. But my client has proof to proove his partial payment. At this juncture my question is whether the cheque is valid or not please advise with supporting supreme court or madras high court judgement
niranjan (Expert) 24 November 2010
Cheque is valid because at the time of part payment you could have taken back cheque of Rs.10000 and given him cheque of Rs.3000. But still you can go for settlement in the court.
adv. rajeev ( rajoo ) (Expert) 25 November 2010
Cheque is not valid because your frnd has already paid Rs.7000/- only he has to pay Rs.3000/- so for excess amount cheque is drawn. Contest the case and prove the payment of partial amount.
Advocate. Arunagiri (Expert) 25 November 2010
If you can not prove the payment of Rs.7000 you will loose the case.
Advocate Bhartesh goyal (Expert) 25 November 2010
Cheque is not valid as a portion of cheque amount repaid. Whole amount of debt or liability was lesser than the amount represented by cheque No offence u/s138 N.I.Act is made out when such a cheque is d1ishonoured .Please note the following cases. 2003 Criminallaw journal 2146, 2009{1]CIVIL COURT CASES 443{ KERALA}DB
Khaleel Ahmed (Expert) 25 November 2010
You have to prove the amount of cheque has been paid in settlement.Otherwise the total amount have to pay.
Kirti Kar Tripathi (Expert) 25 November 2010
you have not mentioned against which liability you issued the cheque. however, you can prove the payment of Rs. 7000/- and make offer for balance amount under it.
DEFENSE ADVOCATE.-firmaction@g (Expert) 25 November 2010
Valid invalid arguments has no status once process is issued.

You seek disclosure and confront in cross.

Validity and existance of liability is the more important weapon in the hands of accused in any NI 138 case.
Ayantika Mondal (Expert) 25 November 2010
the cheque is valid unless ur client has had cancelled it while paying the 7000/- or has some document in writing stating the same.
Arun Kumar Bhagat (Expert) 25 November 2010
I differ with all experts.What is the amount demanded in the demand notice ? If it is 3000/- then you will loose the case, if it is Rs.10,000/- then you will win because there is no existing liability.
ashish lal (Expert) 25 November 2010
if you able to prove what you have said then you are going to win the case. There is a latest Delhi High Court Judgement on this point.
SANJAY GUPTA (Expert) 27 November 2010
if your cash payment note contain that the cash of Rs.7000/= paid against the the cheque no. mentioned therein in that event you will gwt the benefit otherwise difficult to prove you paid against the same laibility.

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