vinod joshi (pro[erieter) 04 June 2010

N.I. ACT U/S 138

Dear lawyer,

i had been served a notice under sec 138 of N.I. ACT, accusing me of one bounced check and payment stop by drowee. As a fact we had isued the said checks against security for goods. The complainer has produce the cheque to my bank 1st check was dishonered due to insufficient funds. As soon as we came to know this we had wirrten to our bank to make stop payments for the same cheque & another checks as the checks were given for secirity purpose only . 4 days latter the complainer producesd another cheque , which was return to the complainer with the memo stating top payment by drawar. the fact is that date on which the checks were produse to my bank at that time we donot have any debts as per accounts of ledger. WHICH HAD BEEN ACCEPTED BY THE COMPLAINER IN HIS NOTICE. LOOKING IN THIS MATTER I CAN BEEN ACCOUNTABLE TO RECIEVE THE NOTICE UNDER SEC. 138 OF NI ACT. PLE ADVISE

Reply Follow

6 Replies

YOGESHWAR. (ADVOCATE HIGH COURT-criminal /civil -youract@gmail.com) 04 June 2010

In such cases the reply has to be given very carefuly otherwise keep quite till you get notice form court, there is no other way out.

We help people to defend the NI 138 cases since the complainant makes many mistakes which most of the advocates do not take advantage.

adv. rajeev ( rajoo ) (practicing advocate) 04 June 2010

had you informed the complainant regarding intimatin given to the bank for stop payment? if yes you will survive otherwise you will have to face the consequences.

There are decisions that even cheque issues as security is also comes under NI ACt. Reply carefully.

Pankaj Mehta (Advocate) 04 June 2010

agreeing with the views of my learned friends, complainant is not estopped from filing the complaints, all of your defense will be considered while due course of trial and examination of witnesses, complainant willl have to prove his case summarily at initial stage for issuence of process against u, in this case stop payment instructions and earlier ground of dishonor are sufficient to constitute matter against u, better is that after receiving of notice, reply elaborately through a skilled lawyer.

valentine (Advocate) 23 June 2010

The best thing to do in cases u/s 138 NI Act is to settle the matter at the earliest if the opposite party agrees.

Basavaraj (Asst, Manager-Legal) 23 June 2010

I agree with adv. rajeev ( rajoo ) advise, but in recent Suprme Court judgment in K.Narayana Nayak V/s M.Shivarma Shetty, Criminal Appeal No.504/2002 decided on 11-04-2008, held that cheques in question were actually issued by accused as a security purpose and not for discharge of any existing debt-No need to interfere with order of qcquttil.

All are is that you will have to prove that cheques were issued for scurity purpose only and not for legal debts, burdon of prove lies on you. See whehter had you sent any letter to the complaiant for not to present the said cheque. Beacuse the same will speak vaoulme of your evidence.