Section 138

to constitute an offence u/s 138 ;T

he necessary ingredients are as follows:-

a. the cheque must have been issued in favour of the payee;

b. the cheque so issued must have been issued in discharge, either in whole or in part, of a legally enforceable debt or liability;

c. the cheque should have been presented for encashment within six months of the date it bears or within its specific validity period which is earlier;

d. the cheque should have been returned by the bank unpaid, because the amount of money standing to the credit of the account is insufficient or it exceeds the amount arranged;

e. that the payee should have given a notice of dishonour to the drawer within 15 days of the receipt of information by him from the bank regarding dishonour of the cheque demanding payment of the cheque amount;

f. that the drawer should have failed to make payment within 15 days of the receipt of notice.

After the expiry of the period stated in point f. and within one month from that day, cause of action begins within which complaint has to be given.

Since you have replied to the notice promptly, within one month from the expiry of 15 days they should have filed a complaint. But here they are doing it after 1 year. So it is barred by limitation

*****Members you can correct me if i am wrong****

 

 

 

 

Moreover you have proof to show that you have discharged  the debt. So dont worry, the complaint will not survive....

 

you have to appear in the court and contest the case.

 

 

Cheque bounce law is stringent 1) cheque was from the account of accused 2) it is bounced far want of funds 3) liability is presumed and summery procedure for fine and conviction.

 BUT ACCUSED HAS RIGHT TO REBUT THE PRESUMPTIONS. Law can not provide for all the eventualities /possibilities and hence power of defense which is power of negative is immense. Darkness is perpetual light has to be sustained

I agree with the preposition of law as discussed above. You must show your bank account statements wherein such payments have been debited. And the proof of your communication "to deliver the undated cheque" n AD card proof. The complaint will be quashed provided u prove ur bonafides.

Thank you all for such an immediate response & guidance however request your help on below questions:

1. It is clear that the complainant is doing this only for harrasing & with a view to extract extra money from us. Now which one is recommended a) should we go through trails under in The Court of Judicial Magistrate where the case is filed or b) Should we directly approach High court.

2. Is it mandatory for our Managing Director to personally attend the first hearing or can he authorise somebody to attend the hearing on his behalf as he is travelling abroad on the hearing date.

3. If it is mandatory for our M.D. to attend the hearing but the fact remains that he would be travelling so can we extend the hearing by few days.

4. Can we counter file a defamation case on the complainant. If yes, is their a time limitation?

No defamation case possible.

You have been trapped due to careless ness and so now you have to face the trial.

 

Simple tricks of defense.

 

When a bucket is lost in a well what normally in a village they do to recover this bucket. They keep a multi angled hook catch just like an octopus . It has small small hooks at different angles. It is lowered in the well the bucket gets entangled in any one of the hooks.

 

Similarly for defense you must not stick to any one strategy however plausible and strong it may look. Study each and every word of the documents and find as many faults as possible. You will get numerous mistakes of the opponent.

 

Please do not put much reliance on citations of higher courts since many times even applicable but lower courts may disagree. So  in over confidence due to dependence on citations other opportunities of defense are lost.

 

Power of defense is power of logic, power of negative, power of darkness and it is perpetual and immense. It is the skill of defense to harness it. Dive deep and you will get pearls on surface you just collect garbage.

 

 

  

PEOPLE LOOSE BECAUSE OF CARELESSNESS FROM BEGGINNING. THEY WASTE INITIAL TIME  IN TAKING DATES ONLY. YOU HAVE TO INITIATE  PROPER  ACTION FROM DAY ONE WITH EXPERT LEGAL ASSISTANCE THEN WINNING THE CASE WILL BE EASY, SIMPLE AND SURE.

 

 

It is the misconception, that once the summon is issued, the accused has to face the full trial, aprt from approaching High Court u/s 482, the trial court can be pursuaded to seek more information from the complainant, on certain valid questions of law raised by the accused prior to charges are framed.

 

You need to proceed as follows:

 

1. Immediately arrange for the copy of the complaint from the court, it is quite easy, visit the court, you may have to take the help of local lawyer.

2. Check  for the dates and plea raised.

A case in May 2012 cannot be filed if the dishonor date is around April 2011. Although courts have jurisdiction but the delay has to be solidly justified by the complainant. Also the court would have given its written order for taking cognizance on such delayed complaint.

 

3. As per act, the court is required to send the complaint copy along with the summon.

 

 

The point "b. the cheque so issued must have been issued in discharge, either in whole or in part, of a legally enforceable debt or liability;" need a small clarification. Suppose, Mr. A posing himself as an expart in property management, takes Rs. 5,00,000.00 worth of property from Mr. B without ant written agreement. Mr. A used the property of Mr. B for his own advantage and by this process looses whole property of Mr. B. After being cought, Mr. A gives a written undertaking on a plain paper assuming his responsibility to pay Rs. 5,00,000.00 to Mr. B. Afterward Mr. A gives a cheque of Rs. 5,00,000.00 to Mr. B which - when deposited by Mr. B - was dishonoured by the bank for 'Insufficient Fund'. Now in this case, can Mr. B move to the court u/s 138 satisfying the point (b) above? Is this a legally enforceable liability on Mr. A? Can a cheating case u/s 415 be done on Mr. A is he denies his liability?