Negotiable Instruments Act 138

Chandra sekhar (Querist) 15 December 2008 This query is : Resolved
Dear All,
The facts of the case are as under. I am for the accused. The accused and the complainants are family friends for over 3 decades. The complainant had sold a property to the accused and executed a registered sale deed. As a part of the sale consideration the accused has issued a Cheque for Rs 65000/- and mentioned clearly in the sale deed. The accused maintained sufficient balance into his bank account as on the date of issue of the Cheque. Immediately the next day after the sale transaction the accused went to the property and found that there are third party claimants on this property and well as that of Governments claim on this property and civil litigations were there much before the sale transaction took place. The District Collector, Thasildhar and other Government Officials have imposed ban on the sale of this property much before the sale transaction took place. But the complainant purchased the property with different survey numbers and after coming to know the problems he has cleverly sold the property to the accused who is his friend. By then the accused has paid huge amount to the complainant except the mentioned Cheque amount. The accused has informed not to present the Cheque. The complainant has assured to solve the problems and has done nothing and presented the for collection as the time of the Cheque was getting lapsed at the end of 6 months. The Cheque bounced. Cheque bounce case and a civil case for cancellation of the sale deed was filed by the complainant.. After some time the Complainant got amended the civil case for recovery of the balance sale consideration in the event of the sale deed cannot be cancelled. The Civil case was won by us and pending at the High Court

The Accused got the land survey done by the Thasildar office to prove that the survey numbers mentioned are wrong and also procured more than 30 documents to prove the land has several claims and Govt. Claims. The Concerned Deputy Collector was summoned to the court by the accused and he has clearly stated in his chief and Cross examination that the property belongs to the Government.

The complainant has filed only a certified copy of the Cheque in the Criminal Court.

I request members to provide and useful information and High court or S.C. judgments favorable to the accused.

Thank you

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PALNITKAR V.V. (Expert) 15 December 2008
The transaction seems to be illegal as the land could not have been sold. In fact your client has been cheated by the complainant. Thus, your client is not liable to pay anything to the complainant. The amount under the cheque is not debt legally due. Hence, Section 138 of NIAct will not be applicable.

K.C.Suresh (Expert) 16 December 2008
There is no debt due to the complainant. The transaction is illegal and amounts to cheating U/s 420 IPC. Your client is not liable to pay the amount and he is eligible to get back the paid amount with damages. Approach the Civil and criminal courts.

Dheeraj Joshi (Expert) 16 December 2008
If there is documentary proof to the abovementioned facts then the case against your client can be decided in his favour, in fact you should file a criminal complaint against the seller under the provisions attracting criminal breach of trust, misrepresentation.