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tanya singh (self employed)     19 December 2009

defence option with an accused of cheque bounce case

hi , my salary cheques have got bounced  for the reasons of insufficinet funds. i am planning to file a case against my employer. i want to know the kind of defence options that he has. i have been told that he may not appear in the court citing medical reasons. and hence prolong the case hearing by three years. is it true? what is the remedy to this



Learning

 17 Replies

Arvind Singh Chauhan (advocate)     19 December 2009

Just proceed with 138 NI Act as completing all the requirements fof law. what he is saying, is no excuse. Prima facie, legally you seems  in strong position.

V. VASUDEVAN (LEGAL COUNSEL)     19 December 2009

 I am sure you must be aware that before initiation of a case under section 138 of the Negotiable Instruments Act, you will have to issue a notice of the return of the cheque and demanding payment within 15/21 days of receipt of the notice. It should be addressed to the employer by way of a legal notice by Registered Post with Acknowledgement Due/Speed Post with POD

Vasudevan

tanya singh (self employed)     19 December 2009

yep. i guess this all is taken care by the deputed legal consel. or do i need to perosnally look in to  this??

Arvind Singh Chauhan (advocate)     19 December 2009

It would be better to take help of legal counsel.

1 Like

tanya singh (self employed)     19 December 2009

yep. honestly speaking , this is first ever legal case i am initiating from my side. like all indians, i am very apprehensive about the quality of guidance i may receive from my appointed lawyer. people around me have strongly recommended tnot to get involved in the legal process, it is difficult to trust your own lawyer. although i want to fight for the justice. 

Kiran Kumar (Lawyer)     19 December 2009

no doubt u ve got a good case, and u should engage a local lawyer as well.

 

as far as proceedings under S..138 NI Act is concerned those are criminal in nature and your employer can not skip those, atleast he will have to get bail fromt the court.

 

but prior to court proceedings you are supposed to serve them with a legal notice, your employer may release money on reciept of notice from your counsel.

1 Like

saurabh (advocate)     19 December 2009

well...u have to send legal notice first of 15 days.....yes he may try to avaoid geting notice...for tht u have to send it by courier,a.d and simple post....to tht officaial and his residential adress....

now he mite avoid the procedings but u have to show tht in normal course of business notices and letter sent to tht adress nlly....and then file the case...after tht normally 138 casses do stretch for 2 yyeras around..but if he try to oversmart non bailabale warrent may issue against him and also if he wnnt come attachment also hapns...this take time...

1 Like

Raghav Sood (Lawyer)     19 December 2009

well presumption of legally enforecable debt is not matter of presumption u/s 139 u need to prima facie prove that the cheques were indeed issued for discharge of leaglly enforecable debt like wise arrears of salary in this case in order to shift burden upon him

Defences available to him are: -

Cheques stolen by you from the office

cheques were not ment for you misutilization

cheques were not given to you instead your were told to deliver the cheques to some else

if the the employers pay salary by cheques enlcose you account statements with your complaint

 

1 Like

Raghav Sood (Lawyer)     19 December 2009

rest all LD friends have opined and they all are correct go for it file compliant and get your hard earned salary

anuz doda (independent advocate)     19 December 2009

Respected Bindu , your matter is  good one for 138 NI Act . You have all evidence against your employer . Engage a good lawyer n believe on him . All legal formalities will be completed by your Advocate . There is a provision in NI Act  i.e. 139 Ni Act . Which is totally against your employer n  i.e. your employer have to to prove that how the cheque reached in your hands . You have to submit your case n submit your earlier salery statement with that only . The case may take a long time but if you follow your case regularlly then it will take a small time n your employer have to pay you the cheque amount earlier . Best of Luck . Anuz Doda Advocate .

1 Like

PJANARDHANA REDDY (ADVOCATE & DIRECTOR)     19 December 2009

 I DON NOT THINK U REQUIRE ANY CASE FILLING AFTER NOTICE UNDER NI ACT, U R  DEFINITLY GET BACK UR SALARY WITH IN 15DAYS OF RECEIPT OF THE NOTICE.  OTHER WISE THE EMPLOYER HAS TO SHED DOWN  2 TIMES OF D CHQ AMOUNT AND I YEAR IMPRISONMENT.

1 Like

MOHANA SUNDARAM (Advocate High court Madras. M-9840908555)     20 December 2009

Mr. Janardhana reddy sir is correct.

1 Like

rajkumar.vnm.marupeddi (advocate)     20 December 2009

Respected Bindu, As per Amended Act of NI Act, you  shall make a demand for the payment of the said dishonoured cheque amount of money by giving a notice in writing, to your employer within thirty days of the receipt of information by you from your  bank regarding the return of the cheque as unpaid and your employer   fails to make the payment of the said amount of money to you within fifteen days of the receipt of the said notice, you are entitled to initite legal proceedings again your employer within thirty days therefrom. Most important aspect you have to take care of is to ensure the service of your prior notice of demand. I further opine that if your notice  is not served or if there is no evidence as to service or receipt of your notice, there will be no cause of action for your complaint. It is alsways advisable to issue legal notice under Registered post with Ack due and also under Certificate of postinng and Also through Courier service.    Some times, there are chances of dismissal of your complaint on legal technicalities or continuous default in appearence before Court on the dates of adjournments.Some of the legal technicalities are if the cheque is presented twice, if you happen to issue any legal notice to your employer and did not choose to proceed with complaint, if you again present the same said cheque second time, you are not legally entitled to file a complaint under NI Act basing on the 2nd legal notice. Apart from all this the contents of  cheque to be proved during the trial.  You should also be able to give your evidence without shaking during cross examination. The above said  precautions may be some of the defence options of your employer.  Your employer may drag on the proceedings. But, either you or your counsel can make a special request to Court for short dates for speedy disposal. I advise you to entrust your case to a regular practicing Advocate  well versed with old and latest case law(apex Court Judgments) on NI Act.  From the brief facts of your case, it seems the chance of success is undoubted. 

 

 

 

1 Like

Parveen Kr. Aggarwal (Advocate)     21 December 2009

The actual defence to be taken by an accused comes out only when the case is being proceeded with. However, a complainant has to prove the following to succeed in a complaint of cheque bounce:

(i) Cheque was issued against legally enforceable debt or liability,

(ii) It was presented for payment within its validity period (6 months),

(iii) It was dishonoured for want of sufficient funds, exceeds arrangement etc.

(iv)  statutory notice in writing within one month of receipt of information of cheque bounce is served on the correct address of the drawer (here your employer),

(v) the drawer fails to make payment of the cheque amount within 15 days of the receipt of the notice, and

(vi) the case(complaint) is filed within one month after the expiry of 15 days' period given to him for making payment.

So you may guess in your facts and circumstances what defences, your employer may take.

Regarding not appearing on medical grounds, the courts have sufficient powers to enforce attendance by summoning through bailable warrants and warrants of arrest if you assist the court officials in getting the summons served.

Besides filing criminal complaint for prosecution and punishing him for his criminal acts, you may also file a suit for recovery of your due amount. You may also get compensation in the criminal case.

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