sanjay gupta (MANAGER FINANCE) 24 January 2011

CHEQUE DISHONOUR

DEAR SIR,

WE HAVE DISPUTE OVER THE TITLE / RIGHT OVER THE PLOT ALLTTED BY HUDA, WITH OUR SISTER. WE HAVE FILED A CIVIL SUIT AND LODGE A FIR U/S 467,471,468, ETC ON HER.

DURING DEC 2009 SHE ENTERED INTO A SETTLEMENT AGREEMENT WITH US FOR COMPENSTION OF RIGHTS OVER THE PLOT FOR RS. 12 LACS, 2 LACS CASH & 2 CHEQUES FOR RS 5 LACS EACH ON 15.03.2010 AND 15.06.2010 AND IMMEDIATELY WE WILL WITHDRAW CIVIL SUITE AND WITHDRAW FIR/ CRIMINAL CASE., ACCORDINGLY WE WITHDRAW CRIMINAL CASE IMMEDIATELY.

SHE FILE AN APPLICATION U/S 482 WITH HIGH COURT TO QUASH THE FIR, THE FIRST HEARING WAS ON 19.02.2010 BUT ADJURNED FOR MAY 4, 2010 AND LATER ON 30.6.2010

SHE ORALLY REQUEST US FOR NON DEPOSIT OF CHEQUE IN BANK. FURHTER SHE LAID A CONDITION FIRST YOU MAKE STATMENT IN HIGH COURT THEN I WILL PAY RS. 10 LACS.

WE DECIDE NOT TO MAKE ANY STATEMENT FOR COMPOMISE BEFORE PAYMENT OF RS. 10 LAC. AND SHE WITHDRAW HER APPLICATION U/S 482 FILE WITH HIGH COURT BEFORE 30.6.2010.

THEN WE DEPOSIT THE CHEQUE IN BANK, AND CHEQUE DISHONOUR, WE FILE TWO SEPERATE CASE US 138 NI ACT, ACCORDING TO LAW.AND ALONG WITH COPY OF SETTLEMENT DEED, NOTICE AND POSTAGE RECEIPT.

ON ASKING ABOUT FIR , THE POLICE OFFICAL SAID THAT THE INVESTIGATION IS IN PROCESS.

(ONLY ONE THING IS THAT ORIGINAL COPY OF AGREEMENT IS VESTED WITH RESPONDENT, AND ON THE AGREEMENT THE CHEQUE NO. ARE NOT MENTIONED ON LEAVE THE SPACE FOR CHEQUE NO. AND BANK NAME).

REQUEST YOU TO PLEASE ADVISE WHAT TO DO MORE AND WHAT IS THE PROBABILITY TO WIN THE CASE.

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5 Replies

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108) 24 January 2011

It will be highly improbable that the cheques given for private settlement can be considered as "legally enforceable debt or liability". The trial court will be highly recluctant to accept it and a favourable order is unlikely, in the given circumstances.

Keep Smiling .... Hemant Agarwal

sanjay gupta (MANAGER FINANCE) 25 January 2011

We have made settlement cum agreement deed on stamp paper of Rs. 100 which is duly notarised and verified by advocates. and duly signed by both the parties in withness of 4 persons.

The language on the deed is that.

The parties has dispute over the plot for the right/ title on the said plot. Now the 1st partiy has agree to pay compensation of Rs. 12 lacs to the second party for their right on the said plot.

the payment shall be made in the following manner.

Rs. 2 Lacs CAsh on __________

Rs. 5 Lacs vide Ch.No. _______ dated_________ drawn on _____________

On recept of Rs. 2 Lac, the second party shall withdraw the case immediately and on receipt of full payment of Rs. 12 lacs, the second party shall have no right over the plot.

Please tell your view after reading the above

Vineet gupta (abc) 25 January 2011

Negotiable Instruments Act, 1881, Section 138 - Cheque issued pursuant to the settlement arrived at between complainant and the accused - Held, where there is a settlement and cheques are issued in pursuance of the settlement, it cannot be said that there is no debt due and that there is no contract..... (ANDHRA PRADESH HIGH COURT)

Negotiable Instruments Act, 1881, Section 138 - Dishonour of cheque - Discharge of liability - Cheque issued for settlement of trade liabilities - Forms valid consideration - Dishonour of cheque justifies penal action u/s 138 of the Act....................... (KERALA HIGH COURT)

https://lawmirror.com/search.php?passed=&searchterm=settlement+cheque&wordlayout=all&field[headnote]=headnote&page=1&field[article]=article&field[section]=section&field[order]=order&court=0

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE ) 25 January 2011

Yes settlement is legal liability but this case is complex and will not attract NI 138 even if process is issued.

The accused will have many valid defense for refusing to make payment.

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108) 25 January 2011

for Sanjay Gupta :

Technically speaking you do not have any concrete recourse under the N.I.Act. Filing proceedings under the N.I.Act can only help in having an upper hand in future negotiations (or say arm twisting). the settlement deed speaks of "COMPENSATION" which is yet not equivalent to "legally enforceable debit or liability"

For failure to honour an settlement / agreement, you have to take recourse under the CPC or if certain parameters permit then also under the IPC. In the above matter, the parameter of "enforceable debt or liability" does not arise, since either of the parties can have recourse to rescind the settlement agreement, under the provisions of the Contract Act.

Further the above settlement / agreement deed is notarised on a 100/- stamp paper AND IS UNREGISTERED AND STAMP DUTY NOT PAID APPROPRIATELY, hence it is a null & void agreement, under the N.I.Act.

Keep Smiling .... Hemant Agarwal