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Ujjwal Garg (Self)     17 November 2012

Stop payment after cheque bounce

I was given a chque by a builder in Gurgaon in lieu of a cancellation of booking of a flat because the property land was disputed. I have been pestering the builder to give my money back since March, 2011. They gave me cheques of 5,38,000 in September which was stoped payment by the builder. When I called the builder he gave me another cheque with November date. When I first presented the cheque it got bounced, I called him to ask the reason, he told me to present the cheque again. This time it got stop payment. Now I know that stop payment of cheque doesn't come in Section 138 NI Act, but since it first got bounced can still file a complaint under it? How much time does that kind of case normally take? Apart from this what other options I have?



Learning

 10 Replies

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     18 November 2012

Dear Querist

Stop payment comes under 138 NI act, you can send a legal notice to the builder and if they are not ready to pay the amount you have right  to filed a criminal complaint against them u/s 138 of Ni Act along with section 420 of IPC.

Feel free to call

CHEQUE BOUNCE (Accused in cheque bounce can be convicted and money be recovered .PROSECUTE PROPERLY. chequebounce1@gmail.com)     18 November 2012

Yes you can file NI 138 for stop payment and also IPC 420 but far that you should engage an expert advocate to prepare proper pleadings. Please read the recent SC judgement in this matter.

 

CHEQUE BOUNCE (Accused in cheque bounce can be convicted and money be recovered .PROSECUTE PROPERLY. chequebounce1@gmail.com)     18 November 2012

 

CRIMINAL APPEAL NO. 645 of 2012
April 23, 2012

Nitish Banka (lawyer)     18 November 2012

You have to issue legal notice first, then you can file case u/s ni 138.

CHEQUE BOUNCE (Accused in cheque bounce can be convicted and money be recovered .PROSECUTE PROPERLY. chequebounce1@gmail.com)     18 November 2012

1) For filling case u/s NI 138 notice is necessary but nor filling cases under IPC.

2) Complainants of all cheque bounce cases should file complaint under IPC directly to JMFC whch can be done immediately and after lapse  of time. 

Please go through following JUDGEMENT of SUPREME COURT IN THIS MATTER.

 

 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 645 of 2012

 

27. Admittedly, the appellant had been tried earlier for the offences  punishable under the provisions of Section 138 N.I. Act and the case is sub judice before the High Court. In the instant case, he is involved

under Sections 406/420 read with Section 114 IPC. In the prosecution under Section 138 N.I. Act, the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved.

However, in the case under IPC involved herein, the issue of mens rea  may be relevant. The offence punishable under Section 420 IPC is a serious one as the sentence of 7 years can be imposed. In the case under N.I. Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted

 

only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under N.I. Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability.

There cannot be such a requirement in the offences under IPC. The case under N.I. Act can only be initiated by filing a complaint. However, in a case under the IPC such a condition is not necessary.

 

28. There may be some overlapping of facts in both the cases but ingredients of offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions. The appeal is devoid of any merit and accordingly dismissed.

 

….....…….…………………….. 

(Dr. B.S. CHAUHAN)

.......……………………………

(JAGDISH SINGH KHEHAR)

k.chandrasekharan (advocate)     20 November 2012

stop payment comes under the purview of S.138 of NI Act. So, send notice within 30 days of dishonour of the cheque first. If this time is expired then the process would be rendered difficult.

After the service of notice there is 45 days time to file the complaint petition. So, don't waste time.

You can send notice of demand only once. So, if you send the notice, it would not be advisable to wait for payment on vague promises. Complaint should be filed in time.

CHEQUE BOUNCE (Accused in cheque bounce can be convicted and money be recovered .PROSECUTE PROPERLY. chequebounce1@gmail.com)     20 November 2012

Now as per recent SC citation you can present the cheque any number of times during its validity and after every bounce you can send notice. Last notice will be legal.

Nadeem Ansari (Writer)     22 January 2014

Dear Sir,

I have come under a verbal agreement with my contractor for providing him writing services. Half portion of my Serivces are done. then he give me check of Rs. 15000.00 (Fifteen thousand only). When I deposit it in my own bank, the check bounced with a reason "Payment stopped by Drawer".  

Can I take any legal action against him for Rs. 15000 check bounce for this reason stated above. Pls guide me.

Thankyou

 

Nadeem Ansari (Writer)     22 January 2014

Dear Sir,

I have come under a verbal agreement with my contractor for providing him writing services. Half portion of my Serivces are done. then he give me check of Rs. 15000.00 (Fifteen thousand only). When I deposit it in my own bank, the check bounced with a reason "Payment stopped by Drawer".  

Can I take any legal action against him for Rs. 15000 check bounce for this reason stated above. Pls guide me.

Thankyou

k.chandrasekharan (advocate)     22 January 2014

Dates are omitted in the question,which are relevant for pointed answer. So, general response is provided.

1.Debt:: If you have the agreement or ancellation of booking letter accepted by the builder or forwarding letter for the cheque, debt can be proved.

2.If 30 days have not elapsed from the latest cheque bounce (that is, the date on which you have received the biounced cheque back from your bank, (proof of postal envelope or forwarding letter of your bank enclosing the dishonoured cheque may be necessary, if 30 days' time is not available from the date of the cheque return memo by the bank on which the cheque was drawn), notice of demand can be issued.


3. If 30 days have elapsed from either date mentioned in point 2 above:

If validity of 3 months from the date of the cheque is still available (it appears so from the mention of the word 'november'), you can present the cheque again to get it dishonoured one more time, with whatever reason. Notice of demand can be issued within 30 days from that date of dishonour.

In any case, notice of demand is to be issued. This can be done by you, in simple plain language also or through a lawyer.

Plain language draft:

"In repayment of debt by you, to me, you have issued ch.No.--- dated-----, for ₹----- drawn on ---bank, ---branch, promising to maintain sufficient funds to honour the same upon presentation. But the same is disnonoured vide return memo dated ------, giving reason as : -------. The said cheque is received by me on -----, from the presenting bank.

This notice is issued to you within the prescribed time, calling upon you to pay the said ₹ ----, within 15 days from the date of receipt of this notice, by D.D. payable at -----, to be sent to me by registered post to the following address:

------

Failure to do so, will entail appropriate legal action under law, at your cost and risk.

yours truly,

(-----)

Place:-----

Date: -----.

A lawyer would issue same notice with legal wordings. Send the notice ONLY BY registered post ack.due. Preserve copy of notice, postal receipt, acknowledgement card received or the returned postal envelope, if not delivered.

After the lapse of 15 days + postal transit time, within 1 month, complaint case has to be filed before the jurisdictional magistrate.

Clarification: Section 138 covers 'stop payment' also, as decided in thousands of cases by the Supreme Court and various High Courts.

Take immediate action without loss of even a day at every stage.

Don't use courier service.


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