Summon Under Section 138
Querist :
Anonymous
(Querist) 29 July 2011
This query is : Resolved
I am a young entrepreneur running a HR Consultancy in Mumbai. Back in 2008 I was hired as a retainer by the owner of this company. IN 2009 as agreed mutually I started a propitiatory firm with the same name in April 2009. Now while I was an employee(2008) in this company I did not have any authority to sign cheques.
During this period I was approached by one of the job portals though a rep. We negotiated and agreed upon a deal sometime in Feb'08. However considering I did not have the signing authority I had mentioned to their rep that we would need to wait for the cheques. However he pressurized me, to which I foolishly got carried away and signed the order form. The service was for 3 years with a cost around 3 Lacs. I had unfortunately taken this lightly and agreed to his request of handing him my personal account checques as a stand by. One cheque 10k and the other 2.90L. Now we had an understanding that these 2 cheques will be exchanged with 30 PDC each of 10k. Pl Note- This is mentioned on the order form in the form of remarks. Additionally both the cheques submitted to him have a remark menioning "replacable" written on them.
Now the original owner changed his mind and decided to cancel subscribing for the service. I informed the same to the company rep via phone and email and mentioned to him that I would be stopping payment for the cheques issued. The Rep said that he will take care of the situation via phone. I was not aware at that time that those cheques should have been taken back. I received an email from their collections team in June'08 demanding payment and warning of legal action. To which I replied with the whole story in addition to attachments of old email sent. Which mentioned request to cancel order. PS- The sevrice was never activated. I RECEIVED NO COMMUNICATION FROM THIS COMPANY AT ALL.
I did not receive any reply to this so I thought it was all sorted. Now it seems that this rep gave ahead the cheques for submission may be to achieve his target probably. We shifted office and as I mentioned earlier I individually started a propreitory firm with the same name however with different ST/ TDS etc registrations. Now I am shocked to have received a summon under 138 for having these cheques stopped. The summon has the order copy (where to be replaced with 1+29PDC mentioned) the stopped cheques with "replacable" written on them. Also these cheques have hit the bank in June where as they were issued in March.
Now the catch here is... I have lost data when I shifted. So I do not have any emails as proof with me. I am unable to retreive it through the server as well. I only have a word doc file which shows the pattern in which the PDC's were to be generated. Besides the case has been filed in Delhi court when all transactions happened in Mumbai. I am supposed to attend court on 30th Aug'11.
I seek advise from experts of this forum as to how to face this challenge. I agree that I have been careless and negligent, however I know I have done no wrong. Please help.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 29 July 2011
Appear in the court and contest , not very difficult to come out of it since complainant has to prove lot of things and you have opportunity to demolish the case.
Advocate Rajkumarlaxman
(Expert) 29 July 2011
Appear in the court and take the service of the complaint if not taken. Its a long process and now cheque bounce is not an offence. it has to be proved that you have deceived and issued the cheque. as stated by our expert its a long go. first attain th ecourt for appearance. opt for an advocate first immediately. If i get in touch through anybody i will refer to you. i will get back to you soon.
R.Ramachandran
(Expert) 29 July 2011
Can you indicate as to from which District Court of Delhi you have received the summons from?
Querist :
Anonymous
(Querist) 29 July 2011
Tees hazari court... also isnt the complainant try to trap me? Like the service was not even provided...
R.Ramachandran
(Expert) 30 July 2011
If you so desire, you may contact us.
R.Ramachandran
(Expert) 03 August 2011
Dear Anonymous,
It is not clear whether you have made arrangements to attend to your case or not.
But you can Challenge the jurisdiction. Since the Cheques were issued by you as security in advance and if contract was terminsted and no service was availed, then there is no question of liability. Hence cheques were no issued in dicharge of debt. You can also file exemption application for appearance on 30th August, 2011.
In any case, you have to show the notice received u/s. 138 to your advocate and take appropriate action at the earliest.
Querist :
Anonymous
(Querist) 03 August 2011
Thank You everyone...
@Mr Ramachandran, I am in the process of arranging and consulting a few known advocates. On the 30th I am planning to attend court on my own, and then opt for an advocate if needed.
Also in the notice, they have mentioned that the service was activated...
