cheque bounce


hello,

 

I have paid initially rental advance as Rs 1 lack. When I am vacating in 30th sep 2014 he told needs some time to repay the balance advance Rs 80000/- and part by part he repaid Res 25000/- . For the balance advance he dragged up to Jan 2015.

 

on 5th jan 2015 he issued a cheque for Rs 55000/- and still every day the same dragging is for giving it. I presented the cheque in to the bank and with prier information given by SMS. But now the cheque has returned without clearing.

 

what I have to do?

 

Please guide me to get my money ?

 

The owner is a State govt employee .

 
Reply   
 
Student

Dear Mr.Ram,

As it is evident from the factual matrix given by you now the best course of action for you is to issue Legal Notice under Section 138 Negotiable Instruments Act read with Section 420 of Indian Penal Code and Under Order XVII Civil Procedure Code as well within one month from the date of receipt of information regarding bouncing of the cheque.

The person who owes you money either after receipt of your notice within 15 days pays up the money pursuant to your notice failing which you have one month's time for filing the Criminal Complaint  under Section 138 Negotiable Instruments Act read with Section 420 of Indian Penal Code in appropriate court having jurisdiction.   Simultaneously you can file a summary civil recovery suit Under Order XVII Civil Procedure Code.

I hope this clarifies

Thanks and best regards

Daksh

 
Reply   
 


ADVOCATE sardarsena@gmail.com

THIS PURELY CIVIL MATTER AND NO CRIMINAL CASE POSSIBLE.

TAKE ADVANTAGE OF FORTH COMING LOK ADALAT AND GET YOUR MATTER SOLVED.

 

CHEQUE BOUNCE ACCUSED  AS WELL AS COMPLAINANTS TAKE ADVANTAGE OF LOK ADALAT SHEDULED ON ALL INDIA BASIS ON

                          14TH FEB 2015 ON INITIATIVE OF-

 MINISTRY OF FINANCE GOVT OF INDIA.

FAR EXISTING AS WELL AS FUTURE CASES AND EVEN APPEALS.

                             GOOD FOR ACCUSED.

a)     You will come out of criminal cases.

 

b)     Bargain hard in  LOK ADALAT and your liability may be reduced many fold.

 

c)     Show inability to pay upfront and issue post dated cheque.

 

d)     Even if this cheque  IS  bounces in future there will be no more criminal case but only civil case for recovery but with interest. You will  GET  lot of time to pay up.

 

e)     Even  IF  the case is in appeal such settlement will be allowed in LOK ADALAT.

GOOD FOR COMPLAINANT ALSO.

a)     You will come out of expanses for criminal case immediately.

 

b)     Even if the settlement cheque of LOK ADALAT  bounces you can file summery suit for recovery where the procedure is short sure  and simple

 

c)     Even if you to agree for reduction of value and settlement cheque is bounced even than in the future  through summery suit you can get interest  ALSO  till recovery.

 

d)     In the criminal case if the accused do not have money he / she will   be at the most go in Jail which has no meaning for you. Most of courts are giving minimum jail terms due to clogging of jails. This will also come after long trial and appeals.

 

e)     And in cases after long trial and further appeals if the case is lost you will loose opportunity to file civil case due to limitation.

SO THIS IS WIN WIN SITUATION FOR BOTH AND TAKE ITS BENEFIT.

 

 

 
Reply   
 
Dy Director

S/138 is a a criminal procedure and it cannot be repeated by MoF circular

 
Reply   
 

thank you for all those guided me

 
Reply   
 
ADVOCATE sardarsena@gmail.com

Mr Sudhir kumar please attend any of LOK ADALATS on 14th Feb any where in India which will be held in court premises  so you can refresh you LEGAL KNOWLEDGE.

 

YOU CAN ALSO ATTEND ANY COURT WHERE OFFICES OF LOK ADALATS ARE THERE AND CAN FIND OUT HOW LOK ADALATS ARE  REGULARLY BEING CONDUCTED.

 

OTHERWISE YOU CAN ALSO VISIT ANY COURT WHICH IT SEEMS YOU MAY NOT HAVE VISITED RECENTLY AND THERE ARE LARGE PRINTED NOTICE BOARDS  ABOUT WHAT  IS BEING  DONE IN LOKADALATS REGULARLY IN EVERY COURT IN INDIA SINCE LAST FEW YEARS.

 

OR CONTACT ANY ADVOCATE OR EVEN A CHAPRASI OF ANY COURT AND IT WILL ADD TO YOUR KNOWLEDGE ABOUT LOK ADALATS.

 

 
Reply   
 
member

Mr ram, SC latest judgment says that cheque bounce is a criminal case and there can be separate case of 420.
 
Reply   
 
lawyer

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

 
Reply   
 

LEAVE A REPLY


    

Your are not logged in . Please login to post replies

Click here to Login / Register  



 

  Search Forum








×

  LAWyersclubindia Menu

CrPC MASTERCLASS     |    x