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Ankit Saha (CEO)     07 October 2012

Ni act

I was director and majority shareholder of a pvt ltd company. I sold my shares and received PDCs, some of them bounced due to stop payment. Buyer demanded reduction of shareprice with allegation that valuation was not proper and some operations were improper. I didn't agree and filed case under NI act. Because I was also a director of sold company, will it affect my case? 



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 15 Replies

Shantilal Pandya ( Advocate)     07 October 2012

Liability of the seller is not affected simlpy on the grounds alleged, unless it is successfuly avoided by a civil acion

Ankit Saha (CEO)     07 October 2012

Sir, 

Thanks for the reply. Pl let me understand this better. Are you suggesting as a seller, I can get favourable judgement in cheque bounce case and get my money? Or the buyer can successfully claim that money is not due to me in cheque bounce case?

V R SHROFF (Sr. ADVOCATE Bombay High Court Mob: 9892432152)     07 October 2012

CHEQUES WERE ISSUED AGAINST VALID LIABILITY. 

 

It was consideration amnount of Shares sold, as agreed upon on date of issue. [Even if for part payment]

N.I. Act as attracted. The Signatory of Cheque issued is liable. [u r on receiving side party]

1 Like

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     07 October 2012

agree with experets

1 Like

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     07 October 2012

Both of you are interelated  by joint owning of the property that is shares.

Strictly  speaking the alleged loss is notional far which both has share. If you claim loss than other party is also part looser since being part owner of the shares.

More ever in joint stock company operations everything does not come on record so defficult to prove in court of law.

Even in other cheque bounce cases most of the complainants presume liability on the strength of bounced cheque but it is far from reality for contested cases.

IN SHORT UNLESS YOU CAN PROVE LEGAL LIABILITY THAT IS TRUE VALUE OF YOUR SALE PRICE THE BOUNCED CHEQUES ARE NOT MORE THAN VALUE OF PAPER ON WHICH SAME ARE WRITTEN.

Shantilal Pandya ( Advocate)     07 October 2012

The contract of sale and purchase is complete as soon as the offer and acceptance is complete , it creates legal liability,it remains binding and enforceable, each party is bound to discharge obligation arising from the completed contract, rise and fall of prices of shares is normal occurrence, once it is proved that the shares were sold at a particular price then it will be for the accused to prove his non liability which as per Mr.SOLVE PROBLEMS. also.will be very difficult to prove !!! there is no prohibition for purchase of shares for higher price than its face value.

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YOGESHWAR. (ADVOCATE HIGH COURT-criminal /civil -youract@gmail.com)     09 October 2012

Mr Pandya has explained the sale trasection in depth.

But in this case there may not be any written contract , sale price may have been decided verbally and PDC ISSUED.

Since no payments are made  so even shares may not have been transfered so the transection is incomplete.

R Trivedi (advocate.dma@gmail.com)     09 October 2012

Just explain how have you transferred the shares to buyer. Most likely just like PDC, no proper transfer of stock would have taken place.

 

In this kind of sale purchase arrangement, the transfer is legally considered to be effective on realisation of payment. No payment or dishonor of payment... no transfer... so no liability... and no S.138. No one stops you from filing the case, looking at the situation and competence of our trial courts you may win also, but ultimately it will not be in your favor. 

Ankit Saha (CEO)     10 October 2012

Sir,

Share have been transfered by proper sale transfer form signed by me. As far as written agreement, there is a common agreement made and signed by directors showing value payable to each shareholder by means of PDCs. Some PDCs bounced. Hence the case

Ankit

Ankit Saha (CEO)     10 October 2012

 

 

Sir,

Share price is mentioned in the common agreement signed by the then directors and the buyer mentioning the value due to each shareholder, no of shares sold and PDC details.  Some PDCs bounced. Hence the case

 

 

 

Ankit

Raja (XYZ)     10 October 2012

i will suggest you to file a civil suit for recovery of money as well as a criminal case u/s 406 or alike, as because s.138 of N.I.act will not guarantee the recovery of money.  if require, feel free to consult me. good luck.

1 Like

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     10 October 2012

If shares are transferred that NI 138 action will lie but no recovery of money.

Civil case will take your life time.

You have to go to the COMPANY LAW BOARD having branch in your area and apply for cancellation of transfer of shares , it will be quick and sure remedy.

Raja (XYZ)     14 October 2012

i do not find reason as to why people are so feared about civil cases.............it is the best remedy. you can recover the money at least after the death of the accused/respondent, whereas in criminal you cannot! However the CPC is vast enough to grab, and due to unadequate knowledge we restrain ourselves

SANTOSHSINGH. (ADVOCATE sardarsena@gmail.com)     14 October 2012

 

Provisions of cheque bounce law are short , strict and clear.

1)    Cheque was issued by the accused from his / her account.

2)    It is bounced for want of funds or stop payment.

3)    Accused did not pay even after notice for the bounced cheque.

However it is a criminal case and not for recovery of money. So in very narrow sense it is boon in disguise for the accused.

Since the complainant make many mistakes in the over confidence that once the bounced cheque is with them it is enough to convict the accused and in fear of jail of term he / she will cough up dues.

But there are many escape opportunities for the accused in any cheque bounce case and once it is won even the civil liability for recovery of money becomes time barred .

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