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Sunny Honey (Student)     16 February 2010

INTERPRETATION OF 138 N.I.ACT, 1881

138 NEGOTIABLE INSTRUMENTS ACT, 1881 (AS AMENDED THEREOF)

DECESION OF SUPREME COURT IN THE CASE OF MODI CEMENTS LIMITED vs KUNCHIL KUMAR NANDI (1998 2 JT SC 198) CLEARLY HIGHLIGHTS THE ISSUE - EVEN IF NOTICE IS ISSUED STOPPING PAYMENT BEFORE THE PAYEE DEPOSITED THE CHEQUE IN HIS BANK, OFFENSE IS COMPLETE (ELECTRONICS AND SIDDHARTHAN CASES OVERRULED).

CAN THE ABOVE SAID LAW  BE QUOTED  AGAINST THE ACCUSED, WHERE HE TAKES THE PLEA OF HAVING SUFFICIENT BALANCE IN HIS BANK ACCOUNT.

CAN THE (ACCUSED) ESCAPE THE CLUTHES OF LAW U/S 138 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881 ON THE PRETEXT OF HAVING SUFFICIENT BALANCE IN HIS ACCOUNT ? IS YES, THEN HOW WILL THE UNDERMENTIONED QUESTION BE ANSWERED ?

1) IN CASE THEIR WAS SUFFICIENT PAYMENT LYING WITH THE BANK, THEN WHY THE SAID PERSON DECLINED TO MAKE A PAYMENT ?

2)DOES THE LAW EMBOIDED IN MODI CEMENTS LIMITED BE USED AGAINST THE IMPUNGED DEFENSE OF SUCH ACCUSED PERSONS ?

3)DOES THE JUDGEMENT OF MODI CEMENTS LIMITED PROPAGTE A STRONG PRINCIPLE THAT :- ONCE A NOTICE IS ISSUED WITH STANDING INSTRUCTIONS TO THE BANK TO STOP PAYMENT OFFENSE UNDER SECTION 138 IS COMPLETE AND THEIR IS NO NEED OF INSPECTING WHETHER THEIR WAS SUFFICIENT OF INSUFFICENT BALANCE LYING IN THE ACCOUNT OF ACCUSED.?



Learning

 9 Replies

Arvind Singh Chauhan (advocate)     17 February 2010

Recently in 2009 SC held-

Stop payment- instruction by account holder is not covered U/S 138 NI Act- Since cheque was not honoured on account of “ Stop payment” instruction by the applicant, which contingency is not covered U/S 138- No offence is made out.

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     17 February 2010

Please check some extra points concerning 138 N.I.Act, on the following link.

 

https://www.lawyersclubindia.com/forum/Cheque-bouncing-SC-limits-director-8217-s-liability/14668/
 

Keep Smiling .... Hemant Agarwal

Praveen Singhai (Advocate)     05 March 2010

Dear arvind can u please provide the judgement or citation i want to go through the same, and if u have any idea of SC judgement which tells that cheque dishonour  with reason ' refer to drawer signature' can not fall under the perview u/s 138.

ad. creaminall (professional Advocate)     08 March 2010

a'stop payment instruction" and sufficient balance is not sufficient but the accused has also cneed to give clear and reasonable ground that why he stopped the payment.

ad. creaminall (professional Advocate)     08 March 2010

in one of my matter wherein the cheque was dishonour due to reason "payment stopped" and there was not even sufficient balance in the account of accused till the accused acquitted.

Advocate dishi (AM LEGAL)     27 January 2011

CAN I GET THE CITATION PLS ?

Arvind Singh Chauhan (advocate)     27 January 2011

Mr. Praveen Find the attachment regarding stop payment.


Attached File : 26 26 stop payment.pdf downloaded: 218 times

Arvind Singh Chauhan (advocate)     27 January 2011

mr. Praveen In respect of your second requirement-


Cheque dishonoured- ground was only that drawer’s signature was incomplete- criminal proceeding quashed- S.C.D.-2002(3)-SC-177

Sir I am unable to attach this judgment Citation ia as follows
Criminal Appea No. 950/2001, Decided on 17 September 2001, Vinod Tanna and another V/S Zaheer Siddiqui and other, HONB'LE Justice G.B. Patnaik and Rumapal JJ.

R Trivedi (advocate.dma@gmail.com)     19 October 2011

S.138 is nowadyas creating lot of problem on two accounts. 

1. Courts are taking cognizance based on dishonor cheque and Bank Slip, not following the same as summary case..

2. Counsels for accused are not pleading sufficiently at pre charge stage, otherwise in many cases complaint at precharge stage itself will fail.

In general accused should take personal interest from the day he receives the notice. Many complaints even if initiated can be contested even on technical grounds. For details contact advocate.dma@gmail.com  

 


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