Chq bounce
pashi
(Querist) 09 August 2013
This query is : Resolved
hai,
i thank you all for the information.Now I have got one more quiry. Please enlighten me. Query: Case u/s 138
A duly signed blank cheque belonging to a private limited company, signed by the managing directer was misplaced during 2010. Unfortunately it has not come to our knowledge.
Surprisingly, we received a call from our Bankers on 17-11-2011 and learnt that one cheque valued Rs,6,00,000-00 has come for collection and intern we requested our Bankers to stop payment.
Accordingly, an endorsement was given from our Bankers to the Drawee Bank.
A notice was given for which we did not reply.
The complainant has filed a case u/s 138.
In the notice the compainant who is a stranger to us says he had advance Rs.6,00,000/= but has not mentioned any specific date of advancing the money. He says it is a hand loan.The complainant is unknown to the company and no financial traansaction taken place.
At present the case is registered and is in the prelimanary stage.
Please enlighnten the position of the case.
V R SHROFF
(Expert) 09 August 2013
REGISTER A POLICE complain AGAINST THE complainant FOR THEFT.
THE CO HAVE TO DEFEND THE 138 CASE:
It will result in aquittal, as Pvt Co do not take hand loan, and nor delivered cheque in last 6 months.
Signatory of cheque be questioned before ur action.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 10 August 2013
1) cheque law is constantly being fine tuned and in very recent APEX COURT judgments the routine theory of lost cheque , blank cheque is being rejected.
2) Following are the portions of a 2010 three Judge bench citation which is again confirmed in JULY 2013 by another bench.
However, on appeal against acquittal, the High Court reversed the findings and convicted the appellant-accused.
The High Court in its order noted that in the course of the trial proceedings, the accused had admitted that the signature on the impugned cheque was indeed his own.
Once this fact has been acknowledged, Section 139 of the Act mandates a presumption that the cheque pertained to a legally enforceable debt or liability.
At a later point in the order, it has been noted that the instructions sent by the accused to his bank for stopping payment on the cheque do not mention that the same had been lost.
Furthermore, the very fact that the accused had failed to reply to the statutory notice under Section 138 of the Act leads to the inference that there was merit in the complainant's version.
Guest
(Expert) 10 August 2013
The description of the question does not seem to bear the true story in the light of his earlier query at the following link:
http://www.lawyersclubindia.com/experts/money-lending-413521.asp
The following are the points where at least I cannot believe the story:
1) It is unbelievable that a managing directer would have signed a blank cheque!
2) it is unbelievable that the signed blank cheque would have gone without any deal in the hands of quite a stranger person, whom nobody of the company knows, but he knows the company very well!
3) It is unbelievable that the company was unable to detect a lost cheque for one full year or more than a year while cheque was signed and misplaced in 2010 remained undetected till 17.11.2011!
4) it is unbelievable that the serial number of cheque would have been left blank in the counterfoil of the cheque book!
5) It is unbelievable that the company would not have made any effort to trace the lost cheque for about a year or would not have tried to ascertain fr5om the bank till 17.11.2011!
6) It is unbelievable that the accounts personnel of the company would not have made any bank reconciliation with reference to the cheques issued even up to the month of November 2011, while the accounts of the company would have been closed on 31.03.2011 and even audited within one or two months of closure, i.e., before June 2011!
7) It is unbelievable if the missing cheque would not have come to the notice while audit of the firm's account!
Mr.Pashi, it is fine on your part, if you have any solid defence on these vulnerable issues. Otherwise, these are very weak points of your case on which you can lose.
ajay sethi
(Expert) 10 August 2013
well advised by Dhingraji
prabhakar singh
(Expert) 10 August 2013
Very Valid questions have been raised by Dhingra ji as well as by advocate defence.
When the cheque is signed and sealed,the presumption of consideration would be raised by court.It would be material to see what was stated as reason stoping the payment and why loss or theft was not reported even at then and what was the defense stated in reply to notice or why no reply was given at all?
The burden to prove that cheque was without consideration is upon co. with only one benefit that complainant claims to have passed all as cash/hand loan(hathpher)which is not done generally with companies.The complainant version is not clearly stated in this regard.There are a few favorable points for Co.too.A co.maintains a/c books
in regular course of their business,though they are not binding upon complainant but the absence of transaction in co.books would be relevant under evidence Act.Secondly I.T.Act bars cash possession
of more than 50k and does not validate any cash payment beyond 20k.Thirdly where from complainant came to have 6 lacs,was it his income accounted in his I.T. returns and few more relevant prob by suitable intelligent cross examination of complainant may prove handy for rebuttal of the presumption.Once presumptions gets rebutted,a suitable explanation about his wrongful custody of cheque may turn the table.So it is serious case to be discussed in the chamber of a senior lawyer condcting N.I.cases.
Rajendra K Goyal
(Expert) 10 August 2013
Valid and notable points raised by expert PS Dhingra ji and prabhakar singh ji.
