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sonusampatrao (builder)     21 February 2016

Cheque bounce

i have given cheque bounce notice on 7 dec 2015 . after giving written complanat that i have not recived my accnologement slip on 29 dec 2015 to post office pune. the post office gave letter on 6 jan 2016 that your notice was delivered on 11 dec 2015 . so his 15 days time limit in notice will expire on 26 dec 2015. and 30 days time limit to file case is on 25 jan 2016. but i filled case on 28 jan 2016 . due to late replay from post office almost one month. my uncle who is my lawer said to me that my case is in limitation beacuse bombay high court said that in one of case in criminal law genral 2012, so my case is in limiation or not ??? i have copy of bombay high court judgemnt copy to prove that i am filling case with in limitation .

i have filled one more cheque bounce case to same person . , but this time my notice of cheque bounce came back to me with remark insufficient addres. still i filled 138 case that this accused managed post man and returned my notice . in my first case i send notice on same address where i send my notice on second cheque bounce notice . so how can it come back with remak on letter that insufficient addres and same addres first notice recived. my case will be taken by judge or not ???



 9 Replies

Santosh Goswami,Advocate (Freelancer)     21 February 2016

Your both cases could be admitted. In the first case, delay can be condoned while giving you benefit of doubt. In second case, there could be problem. Service of notice u/s 138 is mandatory. But you can show that previous notice was served on that address. Also move an application seeking a direction to post office authority. Also be ready with a proof that he is still residing there.

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sonusampatrao (builder)     22 February 2016

In second case I have 2 given notice to two partners on same company address and one partner recived notice and I have accnolodement letter but second partners notice on same address came back by remark insufficient address ???,

sonusampatrao (builder)     22 February 2016

In second case I have 2 given notice to two partners on same company address and one partner recived notice and I have accnolodement letter but second partners notice on same address came back by remark insufficient address ???,

sonusampatrao (builder)     22 February 2016

In second case I have 2 given notice to two partners on same company address and one partner recived notice and I have accnolodement letter but second partners notice on same address came back by remark insufficient address ???,

Aashish George (lawyer)     23 February 2016

the working days of the court have to be counted, if he recieved the notice on 11 th dec, then 15 days for repayment and 30 days to file the case, if it expires on 25th jan, then you minus the sundays also, that way it will come under limitation.

the theory of last residing address is applicable in your case, you can send speed post also, and private courier also. then produce those delivery reports too. i am sure all cannot be managed.

hope this helps

regards

aashish george 

G. Y. Sharma (Advocate)     23 February 2016

Dear abhijeet deokar,

Your case will however be admitted and it will be registered. Better request your Counsel to file a Petition under Section 142 (b) of The Negotiable Instruments Act. It is enough.

Truly Yours,

 

G. YADAGIRI SHARMA,

                                  M. Com., LL.M.,

G. AMRUTHA KUMARI,

                                   M. Com., LL.M.,

ADVOCATES

H. No. 2-1-178/1, 100 Feet Road

Vidyaranyapuri, Hanumakonda.

WARANGAL DISTRICT – 506 009

* 98 493 45 755 – * 99 66 45 66 85

gysharmaadv@gmail.com

Prasun Chandra Das (Banker)     25 February 2016

1) Pls note that a bounced chq in which one has missed out to serve notice u/s 138 within 30 days of receipt of information of chq bounce, can be re-presented through bank again. If the chq is bounced for the 2nd time, you have 30 days to serve notice u/s 138, from the day the receipt of information of 2nd time chq bounce. This is true only if the chq is within validity, i.e., if the chq is presented for payment within 3 months of the chq date. So, if you are talking of the same chq here, you can represent the chq again if 3 months has not expired, and if it gets bounced, you have time afresh.

 

2) I think delay in your case for filing case u/s 138 will be condoned, since the delay is caused due to the post offcie. Further, the drawer of a chq cannot plead innocence on the basis of non-receipt of notice. In Alavi Haji vs. Palapetty Muhammed and Anr - By Hon'ble Supreme Court of India - Date of Judgment - 18.5.07, the Court held that "We cannot also lose sight of the fact that the drawer may by dubious means manage to get an incorrect endorsement made on the envelope that the premises has been found locked or that the addressee was not available at the time when postman went for delivery of the letter. It may be that the address is correct and even the addressee is available but a wrong endorsement is manipulated by the addressee. In such a case, if the facts are proved, it may amount to refusal of the notice. If the complainant is able to prove that the drawer of the cheque knew about the notice and deliberately evaded service and got a false endorsement made only to defeat the process of law, the Court shall presume service of notice. This, however, is a matter of evidence and proof. Thus even in a case where the notice is returned with the endorsement that the premises has always been found locked or the addressee was not available at the time of postal delivery, it will be open to the complainant to prove at the trial by evidence that the endorsement is not correct and that the addressee, namely the drawer of the cheque, with knowledge of the notice had deliberately avoided to receive notice. Therefore, it would be pre- mature at the stage of issuance of process, to move the High Court for quashing of the proceeding under Section 482 of the Code of Criminal Procedure."

Concluding remarks of the Supreme Court: "It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected.A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138. In the instant case, the complainant issued lawyer's notice and the same was returned saying that the accused was 'out of station'. We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference."

sonusampatrao (builder)     28 February 2016

I HAVE SEND SUMMON NOTICE TO TWO ACCUSED IN PATNA. THEY ARE REQUIRED TO PRESENT ON 1 MAY 2016. NOW MY QUESTION IS

1) BOTH ACCUSED WILL COME OR ONLY THEIR LAWER WILL COME FOR 138 CHEQUES BOUNCE CASE ON 1 MAY????

2) WHAT IF BOTH ACCUSED AND THEIR LAWER DONT SHOW UP ON 1 MAY?

3) IF SUMMON IS RETURENED BACK TO SENDER WITH REMARK DOOR CLOSED THEN WHAT WILL COURT DO THEY WILL ACCEPT THAT SUMMON SERVED AND ISSUE BALABLE WARRENT OR NOT AT THAT TIME ???

Nitish Banka (lawyer)     03 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.

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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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