138 ni act
Querist :
Anonymous
(Querist) 02 December 2011
This query is : Resolved
I AM ACCUSED IN 138 NI ACT CASE.THE CHQ AMOUNT IS HIGHER THAN AMOUNT I AM LIABLE TO PAY.THE 138 CASE IS MAINTAINABLE ON ME??
Querist :
Anonymous
(Querist) 02 December 2011
let me make it more clear if the chq amount is of rs 3,00,000/- and i am liable to pay 2,50,000/.The complainant have accepted in his affidavid that accused is liable to pay 2,50,000...Then 138 ni act is maintainable on me or not??
V R SHROFF
(Expert) 03 December 2011
Once Process is issued, and Complainant Filed his affidavit, it is obvious that the case is maintainable.
What you want to ask is "whether you will be acquitted or convicted?" is it so?
Once you accept that you are liable to pay, and the cheque was for any part or full consideration of your liability, the fact goes against you. Balance amt may be for compensation, interest, or any other reason, that you paid him willingly and voluntarily. . The fact remains that you paid the cheque, and you are liable to pay him substantial amount.
This is not the way of defense.
You must take care in crossing complainat, why he did not disclose this transaction in his IT, or why he did not deliver goods / property for what you issued him this cheque for surety, & in your 313 statement, and in evidence ,you want to lead.
In case Notice was not issued at your true and correct address, or the cheque is stale, or issued for illegal purpose, or cheated you, or materially altered, having different ink on figure, date amount and signature, proved by handwriting expert, age of ink differ, you did not delver it personally, etc etc can be defense, not 16% less liability, which is usually interest.
Advocate. Arunagiri
(Expert) 03 December 2011
If the cheque value is more than that the legally enforceable debt, the case is not maintainable. However you have to face the trial.
Shonee Kapoor
(Expert) 03 December 2011
I agree with Mr. Arunagiri, it is not maintainable.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
prabhakar singh
(Expert) 03 December 2011
Face the trial with a positive hope of acquittal and be assured, in case you had 2.5l in a/c the day cheque was presented.
ajay sethi
(Expert) 03 December 2011
agree with experts it is not maintanabale but you have to face trail .
Advocate Bhartesh goyal
(Expert) 03 December 2011
Yes you have to face the trial though the case is not maintainable.
Querist :
Anonymous
(Querist) 04 December 2011
thx everyone for your advice...
Querist :
Anonymous
(Querist) 04 December 2011
could anyone of you give me any citation related to the above said matter.IF CHQ AMOUNT IS HIGHER THAN AMOUNT OF THE DEBT DUE 138 IS NOT MAINTAINABLE.
ajay sethi
(Expert) 04 December 2011
it is common sense . cheque is for discharge of debt due and paybale , if as per complainant admission amount due is only 2. 50 lakhs how can 3 lakhs be recovered?
DEFENSE ADVOCATE.-firmaction@g
(Expert) 04 December 2011
Still do not remain over confident , ask for accounts and IT returns.
Since many times lower court do not go for finer points and once cheque is admitted conviction is given.
I am fighting for a accused at Mumbai where even the cheque is not filed still process is issued and without notice warrant is issued.
Advocate Bhartesh goyal
(Expert) 05 December 2011
2009{1} criminal court cases 527 Kerala{DB}
Joseph Sorth vs Gopinathn Nair
Division Bench of Kerala High Court ruled that
When whole amount of debt or liability was lessor than the amount represented by the cheque, No offence u/s 138 of Act is madeout when such a cheque is dishonoured.
Devajyoti Barman
(Expert) 06 December 2011
You better browse the decisions to determine its applicability.
M/s. Y-not legal services
(Expert) 03 December 2011
