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?

 
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Advocate/ nadeemqureshi1@gmail.com

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

 
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Accused in cheque bounce can be convicted and money be recovered .PROSECUTE PROPERLY. chequebounce1@gmail.com

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.

 

 
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Accused in cheque bounce can be convicted and money be recovered .PROSECUTE PROPERLY. chequebounce1@gmail.com

 

CRIMINAL APPEAL NO. 645 of 2012
April 23, 2012
 
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lawyer

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

 
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Accused in cheque bounce can be convicted and money be recovered .PROSECUTE PROPERLY. chequebounce1@gmail.com

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)

 
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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.

 
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Accused in cheque bounce can be convicted and money be recovered .PROSECUTE PROPERLY. chequebounce1@gmail.com

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.

 
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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

 

 
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