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Aayushmaan Bansal (self employed)     27 August 2012

Cheque return case

I used to be a partner in a firm with another person. we had single signature resolution with our bank and either of us could issue the cheque to a party. we had issued 2 cheques of 3 Lacs each carrying only my signature to party. Due to indifferences with the partner we formed separate companies and the partnership firm went defunct. The party to whom we had issued cheques filed a cheque bouncing case both in civil and criminal court and named only me as the accussed as the cheques were carrying my signature. In both the courts we applealed to make the other director a party as well but the court rejected the plea. The other director was fully aware of these cheques being issued to the complainant and was very much involved in day to day activities of the company yet the judge decided otherwise. The civil court has already passed a decree in favor of the complainant and the judgement in the criminal court is due. My intention to pay the dues has always been clear since I was served the notice and had requested the complainant to make the other director a party as well but his lawyer refused to do so and the court as well. 

Is there any last avenue/way by virtue of which we can convince the criminal court judge to call in the other director as well before pronouncing judgement...



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 10 Replies

Yogesh Anand (Head- Legal AVP)     27 August 2012

you will have to make the payment of the cheque first and then you can recover the share of your partner from him by filing separate suit for recovery as per the terms of partnership.

Manu (Manager)     28 August 2012

 

Hi,

I  issued a cheque dated 20/07/12 to my credit card company. On the basis of my salary cheque dated 16/07/2012 but my salary check returned unpaid due to which the cheque issued to the credit card firm also returned un paid due to insufficient funds. I acknowledged my mistake and paid my credit card firm in cash on 29/07/2012.

But still they sent me legal notice under sec 138 NI to pay the amount.

What are my options in this case and what shall I do?

Do i still have to pay for what i have already paid?

Thanks and Regards,

Manu 

Yogesh Anand (Head- Legal AVP)     28 August 2012

No you dont have to pay again.  The notice under 138 is uncalled for.  Only if you dont pay the amount of dishonoured cheque that 138 comes into play not after payment.

Manu (Manager)     28 August 2012

So what should be my next step?

I have sent them a reply with a letter stating the whole incident , copy of the recipt of cash payment.

I am waiting for there reply.

If they still go ahead and persue the matter forward what can i do?

Thanks and regards 

Manu Bhardwaj

R Trivedi (advocate.dma@gmail.com)     02 September 2012

Mr. Manu, Most likely they will not file the case. Still talk to them or if they have the legal department, then clarify to them also. This will save you lot of trouble in future.

 

Mr. Bansal, Your case is quite tricky because complainant has not named the other partner. As per your deed the ratio would have been 50:50 and firm got defunct, so it may not have any asset and hence this 50:50 recovery shall be from both of you, rest assured,  you may have to move an application through your lawyer for this.

 

In the criminal case (under S.138 ?) you are on weaker footing, because it is not recovery case, and unfortunately for you, the vicarious liability to other partner is not fixed. Whatever is the decision it will come on you only. Give an application under S.141 clearly highlighting other partner involvement in the transactions, court will decide the application. Take an additional plea thatv due to dissolution of firm, only you are only defending the case, while the other partner who was equally responsible for omission and comission of firm's acts is staying away. This is against the natural justice and both of you can defend the matter in better way as the transaction was partly/fully handled by him. You issued the cheque on both behalf .

 

Just ensure that you do not end up admitting too many things, talk to your lawyer.  

Aayushmaan Bansal (self employed)     06 September 2012

Dear Mr.Trivedi,

I am happy to inform you that that criminal case was ruled in our favor as a time bar case since the cheques were issued in 2002 and case was filed in 2007. We had the same argument in civil suit as well but it was judged in the complainants favor. We did have an option to appeal in high court when we lost the civil suit but did not as we lost all hope and to appeal in high court a sum of Rs.6 Lacs was required as a deposit. That appeal is still pending. But now after we lost the civil suit we have already paid over 6 Lacs to the other part against court decree as part of repayment of bounced cheque amount + interest. These were all paid in monthly installments by cheque. What options do we have now??? Any chances of recovery...

R Trivedi (advocate.dma@gmail.com)     07 September 2012

My wishes for getting out of Criminal case !!

 

What do you mean that appeal is still pending ? Yo also state that you did not appeal to High Court.

Aayushmaan Bansal (self employed)     08 September 2012

We did appeal in HIgh court but were unable to deposit Rs.6 Lakhs for it and that is why it is still pending...

R Trivedi (advocate.dma@gmail.com)     08 September 2012

Since it cannot remain pending for long, your lawyer must file an application with the court for stay on the decree till appeal is finalised by the honorable court. Court may grant it fully or by asking you deposit some money, but it cannot be 100%. 

Shabu (student)     04 January 2014

I have given 200000 for partnership business in chicken shop on 16/03/2013 without an agreement. He

has given share amount for 2 months only after that he is keep on saying the business is dull. I thought to

quit his partnership business and asked for the money he is given only 50000 and remaining one lakh fifty

thousand  he has given cheque for me when i asked him to deposit the cheque he is saying business is

dull but he is having more than 3 chicken shop for past 4 months and till now he didnt give me any

amount  so  i need a solution how to get back my money only the  proof what i am having is cheque.

so kindly give me suitable answer


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