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Parth Agarwal (Service)     25 December 2009

Dishonouring of Blank Cheque

Dear Sirs,

A close friend of mine had given a blank cheque to his cousin in good faith to pay his electricity bill as he had to leave the city all of a sudden. His cousin who had a malafide intention did not use that cheque for this purpose but presented the cheque with heavy amount and filed case against my friend under sec 138. My friend has taken an anticipatory bail. My friend has no business relatioship with his cousin  No legal documentation, no business transaction, no financial transaction has ever happened between the two.

2. Cheque pertains to ICICI city A, presented to a cooperative bank in city B and dishonour slip says ICICI city B.  Cheque is having at par facility but was never presented to my friends actual account at ICICI city A (Does it help ?)

3. Legal notice also mentions that cheque got dishonoured by ICICI city B which actually is not the correct branch. Moreover, cheque was preseted to cooperative bank on 3rd June, and showed return by ICICI bank on 4th June itself (We can see the overwriting on the bank stamp) 5th being Sunday and on 6th six months would have been over

My query to you learned guys is how strong/ weak this case is ??

 



Learning

 17 Replies

Santosh Sharda (self)     25 December 2009

Since there was no existing liability for any thing owed by you to him, this section 138 would not apply.

Moreover, if he claims that he loaned you the amount, he cannot claim as per the recent judgements as he does not have a Money Lenders License.

His case is very very weak.

There was no need to take an anticipatory bail?

 

1 Like

Parth Agarwal (Service)     25 December 2009

Many Thanks Santosh !

Cud u give me reference of recent similar judgements pls

sunil pagare (lawyer)     25 December 2009

Parth my dear friend, there is no provision  for anticipatory bail in bailable offence & offence u/s 138 NI act is bailable one.someone make ur friend  fool . so far 138 is concern there must be legally enforceable debt. Law is change now , it is the duty of  the holder of cheque to prove his case. According to u,there is no legal documetation ,no business transaction, so dont worry

1 Like

PJANARDHANA REDDY (ADVOCATE & DIRECTOR)     25 December 2009

 IT IS A WEAK CASE, UNDER 138,FORGET ANY SERIOUS CONSEQUENCES IN FUTURE.

V. VASUDEVAN (LEGAL COUNSEL)     25 December 2009

 As per your query, your friend had entrusted a blank cheque in good trust with his cousin for payment of his electricity bill while leaving out of city!. Instead of seeking anticipatory bail, etc. the legal notice can be responded to by setting out the facts clearly as a counter to the legal notice. If need be your friend can lodge a complaint against the cousin for breach of trust/criminal conspiracy. In any case he need not worry as assured by my lawyer friends.

vasudevan


(Guest)

I agree with Vasudevan ji. Yes a complaint have to lodge under breach of trust .

subhash kumar (advocate)     26 December 2009

Dear Parth, First of all the section 138 NIAct is bailable offence , second your are liable to secure the instrument .third  your friend has to proven his case . you have not taken any loan from him . your friend have to prove before the court from where he has arranged the hafty loan amount . time of the signing of cheque . Tell me is your bill was paid in case instead of through cheque . You have ot contest your case very deligently other wise u/s 138 NIAct the drawer of the cheque is liable to pay the  cheque amount.

Subhash Kumar, Adv

dilip (Advocate)     27 December 2009

no offence is being committed by your cousin as the misuser will not be able to prove legally enforceable debt.

1 Like

DAMUKUMAR.S (Not applicable)     27 December 2009

It is the duty of the complainant to prove the transaction. Otherwise 138 of N.I.Act will not be attracted.

Anil Agrawal (Retired)     28 December 2009

 Whether 138 is attracted or not, harassment starts from the day case is filed.

Parth Agarwal (Service)     28 December 2009

thank a lot for your suggestion sir.

Could you please let me know that does breach of trust comes uder  420 ad also

regards

parth

Parth Agarwal (Service)     28 December 2009

thank you for your suggestion sir.

Though we don't owe anything to our cousin but if at any point  of time  proven guilty can my brother  face any kind of punishment other than the payment . please guide us we are really worried.

subhash kumar (advocate)     28 December 2009

Dear, if your cousine find guilty liable to face the punishment, if you pay the amount of cheque to the complainant and he withdraw the complaint , than your cousine not liable to get punishment . you can pay the cheque amount in installment also and for this pray to the presiding officer of the court and sought time to make the payment.

Subhash kumar, adv

Anil Agrawal (Retired)     28 December 2009

 Is there any proof that your cousin took any loan etc.?


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