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Manu Joseph (CMD)     27 May 2013

Under 138 nia

Dear Sir,
 
I need an URGENT advise from you for the following matter.
 
 
One of my Friend came to me for partnership business and agreed to invest money into the new firm accordingly we have registered a Pvt Ltd Firm but during these days he took few amount of money by cheque as well as cash from me as loan and he always agreeing me to return the money soon and also will invest the money in the new company at the earliest.  But he never return my money nor he invested the money in to the new firm.
 
Again he demanded a payment of Rs.1,60,000/- and I have given a cheque of the same but after that, he took Rs.250000/- cash from me as another loan and I stopped the cheque which I have issued earlier as he informed me that, it lost.  I have stopped the same and asked for my money which I have issued previously a Cheque of Rs.104000/- and Rs.30000/- given earlier.
 
Another self check was issued to him before giving the above cheque and he encashed the same but he denied when I asked my money back and he threatened to file the cheque bouncing case and we failed to file a case against him but he filed case against me under 138 NIA.
 
The case is under final stage as I have to provide the evidence of the payment but there was no Liability against him at the time of the above cheque issued and he is now threatening that, if I have not settled the case by paying 7 lac, then no one can help me from going jail.
 
Please advise me BY RETURN that, what will be the legal point in this as my previous lawyer is favouring him and now I have appointed a new lawyer BUT I NEED A FAVOURABLE ADVISE FROM YOU ABOUT THIS CASE.
 
A reply by return would be highly appreciated.
 
Thanks & regards
 
Manu Joseph


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 2 Replies

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 )     27 May 2013

These are the following essentials of Section 138 for making the dishonour of cheque a offence:-
  1. Cheque should have been issued for the discharge , in whole or part, of any debt or other liability.
  2. The cheque should have been presented within period of six months or within period of its validity, whichever is earlier.
    Note:- Cheque may be presented any number of times for collection with in its validity.
  3. The payee or the holder in due course should have issued a notice in writing to the drawer with in thirty days of the receipt of information by him from the bank regarding the return of cheque as unpaid.
  4. After the receipt of the said notice by the payee or the holder in due course, the drawer should have failed to pay the cheque amount with in fifteen days of the receipt of the said notice.
    Note:- Notice of dishonour is unnecessary when the party entitled a notice cannot after due search be found(Sec.98).
  5. On non-payment of the amount due on dishonoured cheque within fifteen days of the receipt of notice by the drawer, the complaint should have been filed with in one month from the date of expiry of grace time of fifteen days, before a Metropolitan Magistrate or not below the rank of a Judicial Magistrate of the First Class. The cognizance of a complaint may be taken by the court after the prescribed period.

MARU ADVOCATE (simple solutions for criminal legal problems -- yourpunch@gmail.com)     27 May 2013

The cheque law is a technical law and guilt of accused is presumed unless rebutted.

 

How ever since the most vital evidence that is - 1) the cheque 2) bank slips 3) notice and 3) postal ack card comes from the custody of the complainant hence it is possible to create reasonable doubts that the same are fictitious , forged , decptive  MANIPULATED and misleading.

 

However particular line of defense can be chalked out by going through the actual record.


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