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sumit (engineer)     07 July 2009

Conditional cheque

I have signed a stamp paper on which it is written that i will pay Rs.50000 through cheque for the damages done by me to his car during an accident and in turn no fir will be filed by the opposite party. The FIR has been filed against me. So i put a stop payment on my chq. Still can they proceed with section 138



Learning

 12 Replies

Kiran Kumar (Lawyer)     07 July 2009

to constitute an offence under S.138 of NI Act, there has to be a legally enforceable debt.....which is not there in ur case.

 

in ur case it was a compromise which has been violated primarily by the other party and u responded in pursuance to that.

 

in my opinion no case under S.138 is made out.

 

make an effort to compromise the matter again, there is a latest SC judgement which says that such an FIR can be quashed if the victim is sufficiently compensated.

1 Like

PARTHA P BORBORA (advocate)     07 July 2009

yes there is no offencer u?s 138 NI Act.

Swami Sadashiva Brahmendra Sar (Nil)     07 July 2009

My friends are right . no further explanation needed.

Deekshitulu.V.S.R (B.Sc, B.L)     07 July 2009

Mr Mirankumar

I hope that since there is already an agreement to pay the amount of Rs.50,000/- made into writing, be it called damages or compensation, it is the amount which is to be paid legally sumit to the car owner. There is no illegality in the contract or paper. Hence I think that the debt or amount is legally due by sumit and he admits the same

But what I doubt is that since the cheque is given as a security for the amount then NI Act, is not applicable, and no prosecution is maintainable based on a cheque which was given as security.

I would be happy to hear from "Mr IPOD"

Dharmesh Manjeshwar (Advocate/Lawyer)     08 July 2009

As soon as the opposite party committed a breach/ violation of contract entered into ....... Ur legal liability to pay the amount ceased to exist ... therefore the cheque issued by you ceases to be a cheque issued against a legally enforceable liability ...... Yes .... nothing can stop the opposite party from filing a case against U under sec - 138 of the N. I. Act but they will not succeed ..... But do send in your reply against their mandatory notice, if they do send any .....

Pankaj Rai (Lawyer)     08 July 2009

Dear, The cheque is given under security does not come in the purview of 138 N.I.Act.

1 Like

S. Fernandes (Entreprenure)     20 August 2009

If the defence taken is limited to breach of agreement, and the agreement explitcitly states that no FIR will be filled by the opposit party than 138 will not apply. However the beleif that a check fiven as security will not attract 138, better you review the Hon. SC rulling at this site

https://lawmirror.com/legal1.php

regards

Eric Cordeiro

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     21 August 2009

Dear All,
The following is my legally twisted perceptions in this matter.
Please write in your counter comments, point wise on the same.


1.  An Car accident is a Criminal Offence, under the IPC and the MV Act.


2.  It is mandatory to lodge an FIR with the Police, under the Laws.
 

3.  By agreeing not to lodge an FIR would mean Violation of the Laws, and subsequent punishment for concealing or suppressing or destroying the facts or evidence concerning the accident.
 

4.  An compromise or agreement in Violation of the Law, is  "null & void" ab initio.
NOTE :  An agreement in or for Violation of Law,  is  "illegal".  An act / agreement which is "illegal" cannot be breached.  Parties have to appear before the law with clean hands ... SC.


5. The Opposite party is mandatorily bound by law to lodge an FIR about this accident.  Even for the purpose of cliaming insurance etc...
 

6. The accident may or could have other repercussions as far as third part liability is concerned or self injury is concerned or counter claims by the accident doer or other criminal / terrorist / drug links.  Hence FIR becomes mandatory, without exceptions, under the Laws..


7.  Payment by cheque for the car damages will easily come under defination of "legally enforceable debt".
 

8.  Cheque is issued for settlement of car accident damages, which has become a liability or now say "debt".    NOW settlement of liability  CANNOT BE CALLED AS  "SECURITY".

(please introspect the following, repeatedly)
9. Cheque is not issued as a condition for not lodging an FIR.  This is no contract or agreement, which intends to suppress the law by violating mandatory provisions.


10.  Lodging of mandatory FIR, does not absolve of the fact that accident did not take place (which can be proved ONLY by an lodged FIR)
 

11.  Further lodging FIR will not mean that either of the parties can persue court proceedings on each other. It can be done or not done even after the mandaotry FIR is lodged.

Keep Smiling .... HemantAgarwal
 

Kamal Grover (Advocate High Court Chandigarh M:09814110005 email:adv.kamal.grover@gmail.com)     22 August 2009

Dear hemant i m not agreed with your point of view.

There are various judgement which reflects that such offenses are compoundable and they can made such agreement. But coz he had filed the FIR therefore Mr.Sumit is not bound and Mr.Kiran is rightly suggested that though there is no legally inforeceable debt, therefore, no offence u/s 138 will be made. but proceed propely else your reply in 138 can be used in MACT claim and you will be punished.

Your further clarification is welcome at nominal fee at;

adv.kamal.grover@gmail.com

Advocate

M:09814110005

CHANDIGARH (INDIA)

We also have branches all over India.

With Regards

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     22 August 2009

Adv.Kamal Grover,

I could not follow your answer, even one bit. AND another thing is I do not need any "legal clarifications for a nominal fee".

You are requested to comment  "point-wise" at my post, as requested in the post itself. 

ALSO just clarify the following : (after reading sumit's initial post)

a.  Did the party (sumit) pay the cheque towards the  "damages to the car"   

OR

b)  Did the party (sumit) pay the cheque for not filing an "F.I.R."

Please answer clearly, with proper justification.

Keep Smiling .... Hemant Agarwal

 

 

 

 

K D Pande (Advocate)     29 August 2009

I, am agree with view taken by Mr. Hemant Agrawal.

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     31 August 2009

ANY OTHER VIEWs, from the participants ?

It will be surprising, if there are no other "negative or positive" views, without giving any justifications to their views, as posted above ?

Keep Smiling .... Hemant


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