Prasad (Partner) 24 September 2012

Part payment made

I had issued a post-dated cheque of Rs. 3,50,000/- to a person. Meanwhile he had come to me asking for some small amount and suggested I could make the payment in parts. So I issued a cheque for Rs. 50,000/- and he encashed it. He did not bring the original cheque, as I would have to issue him a new cheque for Rs. 3,00,000/-. He said he will send it through his friend as he is got out of station. After two months he deposited the original cheque and it was returned unpaid. He issued a notice through his advocate asking me to pay Rs. 3,50,000/- which is the amount written on the cheque. I replied asking him to return the cheque alongwith the property documents he was holding and take back a new cheque for Rs. 3,00,000/- ( it was a property sale transaction for which he gave token advance and after some time declined to go ahead with the purchase and asked for a refund of the money). He did not reply but he went ahead and filed a case under Sec 138 of the NI Act. During cross-examination he denied receiving Rs. 50,000/- but I presented evidence of Bank Manager who testified that the amount was drawn by that person, along-with providing an attested copy of bank account statement that the amount was drawn by,that person and we also presented the cheque copy as well as evidence Please advise me. Thank you much.

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3 Replies

YOGESHWAR. (ADVOCATE HIGH COURT-criminal /civil -youract@gmail.com) 30 September 2012

It seems that amount is written by you in the cheque but if the date is not written by you than still you can apply for forensic exanination of the writting.

You should also have confronted the complainant in cross about when and where the cheque was recieved.

Still at this late stage you can go for handwritting examination.

send complete details by email for exact advice.

YOGESHWAR. (ADVOCATE HIGH COURT-criminal /civil -youract@gmail.com) 30 September 2012

SIGNATURE AND OTHER DETAILS ON BOUNCED CHEQUES.

1) Most of the times cheques are given blank the complainant fills in details and filed case u/s 138.

2) The accused has right to get the forensic examination of such cheques.

3) But most of time when application is given immediately the lower court rejects in on the argument of being premature.

4) After cross of the complainant most of the times due to lack of experience of the legal counsel proper admission is not brought on the record.

So even at this stage the application for forensic examination of the writing on the cheque is refused.

5) With all other defence opportunities this is the most important defence for the accused of cheque bounce cases.

There are simple step by step procedure to achieve this objective.

6) Once the writing on the complaint cheque is not of the accused is proved the whole case will automatically collapse.

7) So those persons who are facing cases for high value cheque bounce may please contact at our email ID with complete details of the case for proper course of action.

v.lakshminarayanan (prop) 30 September 2012

dear member

from your narration, it seems to me that there is liability on your part to pay the amount of rs.3.5 lacs. were you cross examined on this point? did you accept the signature of yours in the cheque and the liability? pl elaborate.

also, my view is that part payment does not absolve you of the liability under sec 138 NI act. you can of course show to the court that you have paid part of the amount and plead for a lenient treatment in sentencing, if the matter goes to that extent.

i feel it is better if you can settle the amount due even at this stage. why waste time and money unnecessarily?

thanks

yours

v.lakshminarayanan

palani