138 Case accepted in-spite of SC new ruling ?
Querist :
Anonymous
(Querist) 12 January 2011
This query is : Resolved
I came to know through this wonderful site LCI that Stop payment/account closed cheque cases do not fall under 138 NIA of 2009 Raj Kumar Khurana case.
Yet a case has been accepted by the lower Court filed against me under 138 NIA.
I had stopped the payment of that account before presentation of that cheque.
Can you please tell me that shud I present that Citation of SC before mine Court and ask to decline case against me?
adv. rajeev ( rajoo )
(Expert) 12 January 2011
File a discharge application and quote the citation. It is necessary to inform the stop payment instruction to the person whom you have issued a cheque, given to the bank. Have you ?
s.subramanian
(Expert) 12 January 2011
I disagree.You cannot file a discharge petition in a criminal case under Sec.138 of NI Act. Chapter XX of Cr.P.C. does not contain any provision for discharge. You have to seek quashing under Sec.482 of Cr.P.C. before the High court only on the basis of the SC judgment.
Amit Minocha
(Expert) 12 January 2011
I disgaree, in the Supra case as per para 12-13 of the judgement, the case fell short of merit because in the complaint it was not alleged that the cheque retd unpaid due to insuficiency of funds therefore the petition was dismissed.
Ajay Bansal
(Expert) 12 January 2011
FULLY AGREED WITH AMIT MINOCHA.
Suresh Babu Rai
(Expert) 12 January 2011
Sir, please inform the citation in which the apex court opined so !
Ajay Gulati
(Expert) 12 January 2011
(2009)6SCC72..this is the citation of Raj Kumar's case but u wil have to make sure that ur case is covered under that if u want quashing, and if it is covered then the proper recourse for u is to approach the high court, however u must bear in mind the case decided by the Hon'ble SC
in the case of MMTC Ltd.{(2002)1SCC234 } wherein the court held
"Section 138 could be attracted though dishonour of cheque is due to stop payment except in situation where accused show that there was sufficient fund in his account and stop payment was made due to valid reason – presumption of debt on part of accused is under Section 139 even in case of dishonour of cheque due to stop payment."
DEFENSE ADVOCATE.-firmaction@g
(Expert) 12 January 2011
PEOPLE JUST SHOOT DISCHARGE OPINION., WHICH IS NOT RELEVANT.
There is no provision for dismissal discharge in lower court as Mr Subrmanuiam above.
Advocate. Arunagiri
(Expert) 12 January 2011
If the stop payment was made, while the sufficient funds are available to meet the cheque, this will not attract the 138.
The bank will not honour the stop payment instruction, if you dont have sufficient balance. In that situation the banker will return the cheque for insufficient funds only.
In your case you have to give the fact. What was the cheque amount, what was the balance as on the relevant date.
By providing this you can get a clear and correct reply.
Querist :
Anonymous
(Querist) 14 January 2011
Ajay Gulati ji and Sanjay gupta Ji ,I think the judgement of the high court of 2002 is overruled when SC judgement of 2009 came.
Plz. comment further.
Querist :
Anonymous
(Querist) 14 January 2011
Here is that judgement
http://indiankanoon.org/doc/159343/
