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jaganjagan (executive)     03 December 2017

Cheque bounce 1st time insufficient funds and second time account closed.

hello sir. person took one lakh rupees amount from me and gave cheque to me to withdraw amount. after asking many time he did not returned my amount. i was waiting with patience almost completed 2yeras and i find no hope that person will return the amount. so i dropped the cheque which got bounced for insufficient amount. and i informed him that i will deposit cheque second time and to maintain sufficient amount. but second time cheque bounced with account closed statement. first time cheque deposited was bounced with "insufficient funds" same cheque deposited second time and was bounced with statement "account closed" He intentionally closed account. and threatening me to do as u wish and i will make you to suffer. kindly guide me how to proceed. legally. can i also file FIR in this issue on closing account intentionally and threatening.


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 13 Replies

R.Ramachandran (Advocate)     03 December 2017

You to send him a legal notice immediately after receipt of intimation from bank about dishonour of the cheque.

If the person does not pay the amount within 15 days of receipt of the legal notice, then you have to file a complaint under Sec. 138 before the Magistrate within ONE MONTH.  The time lines are very very important.  If you do not file the case within time, then your complaint will be dismissed as being beyond limitation period.

So, instead of going on wasting time better get in touch with a local lawyer and take immediate steps.

Advocate Bhartesh goyal (advocate)     03 December 2017

Apart from initìating proceedings u/s 138 of N.I.Act,file complaint before còùrt private complaint u/s 420 & 406 òf PIC.

(Guest)
Agreed with the advice of Sir R. Ramachandran and Sir Bhartesh Goyal

G.L.N. Prasad (Retired employee.)     03 December 2017

As the amount is substantial, entrust this to Advocate as immediately as possible.  Also search in google and find out hundreds of details : Key words.  Cheque bounce 138 NIA remedies.

P. Venu (Advocate)     03 December 2017

Nowadays, a cheque has a validity of only three months after the date of issue.How could you present it to the bank after two years? Is it your case that he had given AN UNDATED CHEQUE? If it so, is it also that he had given the cheque blank as well?

jaganjagan (executive)     03 December 2017

yes sir person has given me filled cheque without date so that i can withdraw amount when i require.

 

c.thomas noble (Lawyer)     03 December 2017

Remedy available under sec 138 of negotiable instrument act, before file a case you should fulfill certiain procedures i-e 1.sending statutory legal payment demand notice u/s 138b within 30 days after receipt of memo from bank with regard to dishonour of cheque 2.after sending notice you have wait 15 days time for making payment by drawer. 3. Within the 15 days if drawer not made the due amout you are entitled to file a complaint before the magistrate court within a period of 30 days.

Ankit Verma (Lawyer)     04 December 2017

You did'nt enclosed all the facts as you mentioned that you dropped the cheque after two years? How it is possible ? Cheque is valid for 3 months. 

If there was no date on this then you dropped it then it will be fine then after the receipt of bank memo of cheque bounce then give notice within 15 days and after that 15 days more to file a crimianl complaint lodge a F.I.R against him under section 138 of negotiable instrument act and file a recovery case as well.

If you have lost the time of 30 days then you can file only suit for recovery. 

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     10 December 2017

You should have sent him demand notice within 30 days of the first return of the cheque. If you had not done it, do it within 30 days of the second return of the cheque. When you send notice do not write superfluous things, because such superfluous can be counter-productive. For instance do not write that he threatened you, told you do as you wish etc. Just ask him to pay up the amount.

Shekhar (Proprietor)     28 December 2017

Most important, with all the above, think, how you will establish, that the cheque was is issued against, legally enforcible debts & liability. Without that, all the above is waste of time, energy & money.

Sudhir Kumar, Advocate (Advocate)     29 December 2017

If you have any matter to prove that some dues were payable to you for which the cheque was given the you have remedy:-

 

  1. NI Act if you have not lost time.
  2. Civil suit if you have not lost limitation.
  3. FIR for cheating case even if aboth abov elimitations are lost.

Sudhir Kumar, Advocate (Advocate)     29 December 2017

Money given to friends and relatives is always a charity in the garb of loan which is given in expectation of refund but always taken with intention of non-refund.

 

Such loan is taken by a person:-

 

  1. Who lacks business sense and cannot raise funds out of his own business and suddenly wants to be rich.

 

  1. who cannot raise bank loan because :-

 

Either

he himself is not creditworthy

 

Or

 the purpose for which he seeks loan is illegal

 

or

the purpose for which he seeks loan is not at all commercially viable.

 

  1.  Who knows he can afford not to refund.
  2. Who trusts his thick skin
  3. Who intends not to refund
  4. Who has made fortification against action of refund.

 

So he has to find someone who can part with his money. SO he finds a lender near him (friend or relative)

 

Such loans are given by the persons :-

 

  1. Who has surplus money.
  2. Who displays and boasts of such surplus money.
  3. Who stupidly believe that there will be a refund.
  4. Fails to realise as to why he alone (not bank) is being contacted for loan.
  5. Who has extreme trust on the debtor
  6. who are either stupid or extremely greedy of the unusual (or illegal) rate of interest.

 

Such loans are always given

 

  1. Without documentation.
  2. Without witness
  3. Without guarantor.
  4. During cordial relations

 

Soon after giving such loan :-

 

  1. Relations are no more remain cordial
  2. Business started by such money  (easy money belonging to other) invariably fails.
  3. Such loans always sink and not refunded.
  4. Person seeking such refund suffers at legal process.
  5. Person seeking such refund legally or by persualtion is socially criticised.

 

 

Nitish Banka (lawyer)     02 April 2018

Posted by: Nitish Banka  Categories: Criminal Law 
 

 

What is a Cheque Bounce?

A Cheque Bounce case is a criminal case envisaged under section 138 of Negotiable Instruments Act. A cheque is said to have bounced because of below mentioned reasons.

  1. Stop payment
  2. Insufficient balance
  3. account closed
  4. signature mismatch
  5. exceeds arrangement

Conditions necessary for cheque bounce

  1. The cheque is bounced due to insufficiency of funds or all the above reasons.
  2. A Legal notice is given within 30 days.
  3. A payment of due amount is not made within 15 days time.
  4. the payment was to be made for discharge of legally enforceable debt.

Strategies to fight cheque bounce

Dispute Legally enforceable debt.

Since onus is on the accused to prove that there is no legally enforceable debt here are the examples to show that there was no legally enforceable debt

Cheque bounced was given as Security

If the cheques were taken only as security for prompt repayment and those cheque were not indischarge of any debt or liability. The date on which cheques were taken there was no debt or liability Accused cannot be prosecuted under NI 138.

In the case of Joseph Vilangadan (Supra) the facts were that the Directors had given certain cheques as refundable security deposits to ensure due performance of their work. In the given facts and circumstances it was held that there did not exist any debt or liability and the cheques were given solely for the purpose of security and hence no action under section 138 of the Act was maintainable.

If there was no debt or liability at that point of time while issuing the cheque

In Shreyas Agro Services Pvt. Ltd. vs Chandrakumar S.B. on 16 February, 2006

The very scheme of procedure adopted shows that the cheques are not issued in respect of any current existing ascertained liability. The words “for discharge of any debt or other liability” inSection 138 of N.I. Act should be interpreted to mean current existing or past ascertained liabilities. The cheque issued in respect of future liabilities not in existence as on the date of cheque would not attract prosecution Under Section 138 of N.I. Act.

So even if security cheque is bounced the prosecution can be initiated and only defence is that there was no legally enforceable debt.

Related image

 

Friendly loan with respect of unaccounted money

As held in Sanjay Mishra vs Ms.Kanishka Kapoor The learned Judge held that the applicant has failed to establish that the cheque was issued by the 1st respondent in discharge of legal liability of the loan amount. The learned Judge observed that the 1st respondent has denied her signatures on the bill of exchange as well as the cheque subject matter of the complaint. The learned Judge has taken into account various circumstances borne out by the evidence on record and has passed order of acquittal. The learned Judge also considered the admission of the applicant that the amount advanced was an unaccounted amount which was not disclosed to the Income Tax Authority.

Cheque was lost and reporting of loss as well as stop payment prior to issuance of the cheque.

What is the case of the petitioner? According to him he had lost the cheque leaf. When was the cheque leaf lost? Under what circumstance was the cheque leaf lost? What is the conduct of the petitioner when he  realised that such cheque leaf was lost? Is there any conduct congruent to lose of such cheque leaf as alleged by the petitioner? Is there any conduct consistent with the theory of loss of cheque leaf? It is crucial and vital that there is not a single piece of acceptable conduct in which the petitioner is shown to have indulged in if as a matter of fact the cheque leaf were lost from his possession. If it were lost, one would have expected the petitioner, himself an employee of a Co-operative Society, to atleast issue a stop payment memo. That was not done. Of course, a convenient Bank Manager did attempt to oblige his customer, the petitioner, by stating in the course of cross examination that oral information was given. It is crucial that even the Manager does not say when that oral information was given and in respect of which cheque. If any such oral information were given, it is extremely unlikely that the cheque would have been dishonoured except on the ground of stop payment. The memo of dishonour does not significantly reveal such a ground for dishonour at all.

Accused Disputing Signature on Cheque

If the accused disputes the signature on the cheque. It is the banker who is the most reliable evidence to establish that the cheque is bounced due to signature mismatch. The bank manager has to summoned with all the records related to signature of the accused and testify in court that the cheque signatures mismatch.

There are also other defenses available to disprove cheque bounce cases however if the cheque is really issued for discharge of legally enforceable debt then it is better to compromise as the cheque bounce case is compoundable


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