Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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kajal (Executive)     20 July 2012

Cheque bounce case

Hi

Can anyone

Two cheques of one of our debtor has bounced ,we have filed a case u/s 138 against one bounced cheque only, there after he paid some amount ,in our accounts we adjusted that amount against prior outstanding.Now the party says that he has paid the amout of case filed & we should withdraw the case.

Now my query is do we have to withdraw the case inspite of outstanding of the party.  



Learning

 12 Replies

shamina sayed (Advocate)     20 July 2012

138 case is not a recovery suit.it is a complaint and if party has made then it should be withdrawn,however if you wish to proceed further,you can but the accused person will be acquitted.if you want to recover the balance,then you should file civil suit for recovery.in alternate you have one more cheque,present it again for enchashing,if it is bounced then file fresh complaint after issuing notice.

CA. Vikash Dwivedi (Chartered Accountant)     20 July 2012

your query is not very clear to me.

1. these cheques are consideration for the same transaction or two distinct transaction?

Case 1.: If both the cheques are for same transaction then i wonder how you can file case u/s 138 after you receive another cheque in lieu of bounced one lateron second also got bounced. Once the cheque is bouced the only way is to get your consideration in Cash if you again receive cheque you lose the cause of action.

Case 2.: if both cheques are for two distinct transactions then you can withdraw case if you have received consideration in Cash while for the other you can sue u/s 138.

lets wait for some more relies. i could recall the NI Act i read when i was studying.

kajal (Executive)     21 July 2012

Two cheques are for two different transactions.

Advocate Bhartesh goyal (advocate)     22 July 2012

During the trial if accused deposite full or part amount of cheque that does not mitigate offence though same may have bearing  on quantum of sentance. 

 {1}   A.I.R 2001 S.C 518 {Rajneesh Agarwal vs Anil J Bhatia 

{2}   2009 {4} civil court cases 766 {Rajast han} Phool Chand vs State of Rajasthan

R Trivedi (advocate.dma@gmail.com)     24 July 2012

Yes, Adv Goyal is right, once the case is on, payment even full payment will not quash the proceedings, unless and until compounding is done by both.

Garima Agarwal (student)     24 September 2012

sir can v file two cases one under section 138 and one under 420 for a single bounce cheque????

Ashish Singla 098140 76600 (Cheque Victim's Lawyer. LUDHIANA (PB))     24 September 2012

Dear Experts , 

I agree the whole payment will not exempt the accused from 138 , but if before presenting the cheque which he had recieved earlier , he recieved the part payment , even than he presented the cheque for full amount . I mean he had debt with Rs.50,000/- towards accused and he presented the cheque for Rs. 70,000/- which he had in custody . Complainant had filed the case for Rs 70,000/- against the leagle enforceable liabilty of Rs . 50,000/- . Now what will happen with the presumption of sec 139 and of sec 138 ? The complainant filled the case , affidavits , notice all with demand of Rs 70,000/-. every where . If someone have solution for this pl share also share some decided case.

Thanks. 

R Trivedi (advocate.dma@gmail.com)     24 September 2012

Read S.56 of Act, which not even the Banks know. If he has demanded full 70000, then case is as good as lost. The cheque amount must be less than or equal to the liability amount.

Ashish Singla 098140 76600 (Cheque Victim's Lawyer. LUDHIANA (PB))     24 September 2012

Mr Trivedi ji , 

Can i have some decided case from you in this same regard pl.

Thanks

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

R Trivedi (advocate.dma@gmail.com)     25 September 2012

There are Mumbai & Delhi High Court orders citing S.56 also, I will try to locate and provide the desired information. But the act itself is quite clear. The problem is lower court decisions many a times do not reflect the proper application of mind, proper application of law, the fault lies with lawyers also, who do not project the case properly.

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     25 September 2012

After the complaint is filed and thereafter if any payment is made it will not affect the case, it will go on.

The accused can fight on many other fronts.

R Trivedi (advocate.dma@gmail.com)     25 September 2012

Yes, but if the payment is made before the cheque presentation to Bank, then accused has a better defense.


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