N I Act 138
Dr.Gaurang N. Gandhi
(Querist) 30 March 2010
This query is : Resolved
Sir,
A party had given 2 cheques as security against goods sold by my client, all details were written by the party. written amount is same as to the bill amount.
now the question is that the party had given assurance that he will paid all amount of arriers in bill as soon as possible and then return the cheque back.
more than 80 days passed from the last day of assurance.
my client had, after long time awaiting present both the cheques to bank, where it was returned with an endorsement that" stopped payment.
pl suggest which type of proceedings should we have to follows????????
Kiran Kumar
(Expert) 30 March 2010
dear Mr. Gandhi,
in terms of present interpretation of law, S.138 NI Act will not apply to your case. recently Hon'ble SC has given strict interpretation to the provision and as per S.138 NI Act, "Stopped payment" is not covered in is ambit.
take other appropriate remedies.
Dr.Gaurang N. Gandhi
(Querist) 30 March 2010
sir
thnx for yr early reply....
but the party had not informed about stop payment of the cheque after issuing.
is there not any mandatory provision regarding that?
Parveen Kr. Aggarwal
(Expert) 31 March 2010
Mr. Kiran Kumar,
Will you please state the particulars of the recent Supreme Court Judgment.
Thanks.
Kiran Kumar
(Expert) 31 March 2010
well Mr. Gandhi, there are no mandatory provision in this regard.
Raj Kumar Makkad
(Expert) 31 March 2010
SC in 2008 RAJ 279 has clearly held that even stop payment instruction comes under the offence 138 NI Act. I am not in the knowledge of latest citation in this regard indicated by Kiran Kumar.
Kiran Can you please provide the reference of that citation you are referring?????
H. S. Thukral
(Expert) 31 March 2010
when the cheque is dishonoured by reason of 'stop payment' instruction an offence under Section 138 could still be made out. The presumption under Section 139 is attracted in such a case also. The Court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the "stop payment" instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there was sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then an offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused. Thus a Court cannot quash a complaint on this ground at the threshhold of proceedings.
Dr.Gaurang N. Gandhi
(Querist) 31 March 2010
Many Many Thanx...to all of u.
Apart from the discussion by learned lawyers,
it is somewhat clear for me that we should follow under the proceedings of NI 138, regarding this case.
One more thing I have to share with u that the cheque was valid only for 3 months as specification made on it in very small later.
Is it valid for the bank to issue such kind of cheque book?
bhupender sharma
(Expert) 31 March 2010
it is not so and not agreed with the opinion of ld. colleauge there are 60 reasons for that the cheque is dishonoured and the complainant is filed inthis regard. The complainant is very much maintainable in this regard rather the offence under section 420 IPC is made out.
Parveen Kr. Aggarwal
(Expert) 31 March 2010
Mr. Gandhi,
A bank can issue cheque book which may have a condition that the cheque(s) will be valid for three months only.
Kindly have a look at the provision contained in clause (a) of proviso to section 138 of the Negotiable Instruments Act, 1881:
"(a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier."
rupareliya
(Expert) 02 April 2010
sevre notice as soon as possible because u can not present the same chqe.again in the bank because it is bounced due to stop payment
