138 of n.i act.
Vick
(Querist) 30 November 2013
This query is : Resolved
dear Sirs ,
if my vendor's lawyer issues a legal notice u/s 138 of the N.I act against a cheque for which Stop payment has been done 2 months back and an Email sent to my client already for the sme matter.
Worst , when a legal notice was served from my side to my vndor asking them to return advance and th PDC cheqes , the vndor got the chequespresented.
bank returned cheque reasoing "Stop Payment".
and , the Kind lawyer of my vendor issued me a notice u/s 138 , "insufficient funds".
what can be done with his lawyer.
prabhakar singh
(Expert) 30 November 2013
NOTHING you can do against the lawyer as the notice received by you is for and on behalf of man in whose favor you issued the cheque and advised bank to stop the same.
BUT YOU DO NEED TO REPLY THE NOTICE REITERATING FACTS THAT LED YOU TO ADVISE YOUR BANKER TO STOP THE PAYMENT TOGETHER WITH AN EXTRACT OF YOUR ACCOUNT SHOWING THE FACT YOU DID HAVE SUFFICIENT FUNDS ON DATE THE CHEQUES WERE PRESENTED FOR COLLECTION.
BAALASUBRAMANNYAMM
(Expert) 30 November 2013
I think your vendor has filed a cheque dishonor case against you. Go and verify first. Your vendor's lawyer has not involved in your dispute, voluntary and what is his necessity.He being an advocate, has done his job in issuing a legal notice, on behalf of his client/s.
Vick
(Querist) 30 November 2013
The question is when the vendor approached the Lawyer and pesumablt gave him wrong information that the cheque got bounced due to "insufficient funds" where as the reason is "Stop Payment " , dont you think it should be the moral , legal or any other type of responsibility of the Lawyer to verify the details of the so called bounced cheques before issiung me a legal notice u/s 138 of NI act.
just because he is a Lawyer , he can simply issue a Legl notice.
in my view it is a case of either carelessness which could harm me or it could be a matter of serving me a nitice in collusion with my vendor. common intentions of fraud that my vendor played upon me,
i also look at this matter where someone takes a patient to a doctor and tell him that the patient has stomachache and without diagnosing anything doctor recommends some life saving drugs followed by chemotherapy.
Vick
(Querist) 30 November 2013
Prabhakar ji thanks again.
pls guide what does it mean when someone says i am representing on behalf of my client ?
a plain reading of the sentence indicates me that the person serving me the notice is reprsenting on behalf of my vendor and is fully aware of the circumstances because of which he is serving me a notice us 138 of the NI Act.
my vendor falied to deliver me the goods in jan. 2013 and i emailed him to return my advance and also the PDC which were dated 20th jan.13 and i got the said cheque "stop paymnt" on 19th jan.13.
in march i served my vendor with a legal notice aking him to return my advance and return the PDC. after the receipt of this notic my vendor presneted the cheque by end march, which was returned back to him reason "Stop Payment".
but my vendor thru his counsel served me a legal notice us 138 of NI act.
Guest
(Expert) 30 November 2013
Since your vendor with out supplying the goods had presented the cheque attach the mail sent by you regarding the same and file a complaint against him. After registering the complaint send a detailed letter to his advocate.For these matters always use registered postal service than mails.Advocate had sent the letter on instructions of the vendor and there should be no reason for you getting annoyed with him.First file the police complaint and make yourself safe.
Rajendra K Goyal
(Expert) 30 November 2013
Reply the notice stating all the facts. Agree with the experts.
Vick
(Querist) 30 November 2013
we replied the lawyer stating the notice served by him us 138 is bald and vague not even the values and figures mentioned in the notice hasanything to do with the P.O and is based on surmises and conjectures.
as per the purchase order issued in oct. 2012 delivery of goods were in november 2012 , but the vendor kept on playing delaying tactics , and also took PDC dated 20th jan 2013. when i cancelled the order on 19th an.2013 and asked him to return my money and pdc cheques he kept silent.
on 29th jan stop payment was done and confirmed by the bankers.
in mid march 2013 , i issued the vendor notice asking returing of advance money and pdc cheques at this point he presneted the cheqs. which were returened stating "Stop payment".
after this he approached his lawyer and issued me notice us 138 of NI Act , stating cheques were unpaid , reason "insufficient balance".
i have initiated a police complaint against my vendor us 420 of ipc as i have all documents that points fingure at my vendor having fraudulent & malafide intentions.
intially police was reluctant to register FIR us 420 of IPC but us 417, 418 of the IPC. but if the later charges r applied then its mere breach of contract or mis-conception of the fact.
but my supplier has cheated me , 1st not only eating my advance , 2nd , after the cancellation of order and serving of the legal notice he mischeivously and fraudlently tried to encash he PDC cheques for the goods he never delivered and despite my email asking him to return my advance and pdc chq. let alone the legal notice..
it was a mistake or carefeless or willfull intent of the vendor but the fact of the matter is that i got a legal notice us 138 of NI Act. from his counel. which in my eyes is wrong as he the lawyer should have ascertained the bank report staing reason for the return of the cheque or should have substantiated facts before issuing me a Legal notice.
i gave a written complaint to local police givinig details and got the complaint received by the police in may 2013.
police called the vendor and am sure some underhand tactics played upon and it has taken almost 6 months for the police to come into action despite my constant follow-up.
it was only when i declared my way of going to court us 156 (3) of crpc. that they came into action and are trying to settle the issue.
pls guide what is the role of the lawyer.
just that he has got a license to practise and knows the Law doesnt make him a super human. if he has erred , he has also to be brought to books as per the indian laws.
how can a lawyer issue notice us 138 of NI act , without verifying the most crucial fact that the cheque was returned with reason "stop payment" and not " insufficient funds".
under the aforesaid circumstances he should not have issued a legal notice us 138 of IPC.
Guest
(Expert) 30 November 2013
Your intention seems to be you wish to take some action against the advocate who served the notice to you.Like how the experts here advise on the basis of querists statements the notice is served on the basis of information furnished by the clients.It is purely made on the trust with his clients.Send him a letter stating your client had given false information let the letter be polite for your good.
Guest
(Expert) 30 November 2013
Your intention seems to be you wish to take some action against the advocate who served the notice to you.Like how the experts here advise on the basis of querists statements the notice is served on the basis of information furnished by the clients.It is purely made on the trust with his clients.Send him a letter stating your client had given false information let the letter be polite for your good.
prabhakar singh
(Expert) 30 November 2013
If people are always right, we would never have any dispute or a dispute resolution system.Lawyers in this system work on information feeded to them by their clients and do not owe any legal duty to go for any investigation if their client statement is false or true rather they are duty bound to presume them true and further legally they are barred not to disclose communications made to them by their client,that is why i hold you have no right or a cause to agitate with a lawyer of a party.
Things are always between parties .
ajay sethi
(Expert) 30 November 2013
no action can be taken aginst lawyer . he was acting under instructions from youer client
Vick
(Querist) 30 November 2013
Thank you Sirs.
But , still i feel that before taking a legal course of serving me a legal notcie on his letter head it is his duty to ascertain facts. just because his client made any statement and he believes the client and issues notice.
just by the virtue of writing ADVOCATE doesnt mean he can throw notices to anyone.
prabhakar singh
(Expert) 30 November 2013
One more thing I missed to state a "stop payment"
instruction or closing of a/c pre or post issuing cheques or even mismatch of signature has been construed by APEX Court to constitute Commission of offence u/s 138 of N.I.Act.
Actually once you issue a cheque,law presumes you issued it for some consideration.
Of course law gives you chance to rebut this
presumption.
prabhakar singh
(Expert) 30 November 2013
Saying so i am not defending BAR or brethren,just telling how courts would take your stand in the light of law.
Vick
(Querist) 30 November 2013
Prabhakar ji , Thanks again.
but because you are a Lawyer and would always have a soft corner for the brethern....but as a man who dont know law. dont you think it was his (LAWYER) moral or legal or some kind of responsibilty to have a glimpse of certain facts before going ahead issuing a 138 notice.
prabhakar singh
(Expert) 30 November 2013
When I am charged by you as biased for brethren,i have no right to comment any more.
Vick
(Querist) 01 December 2013
I am sorry Sirs.
i have understood that the lawyer will entrust his client and in my case if i would have approached the same Lawyer , i am sure he would have accepted my side of storey and begin legal proceedings.
thanks for clearing my doubts.
Prabhakar ji , sorry to you again , i had no bad intention to raise any fingure on you or charge you , i really respect you Sir.
