138 ni act
rajesh kumar singh bhadouria
(Querist) 11 April 2013
This query is : Resolved
how can protect any one to himself from 138 ni act after issuing the cheque if cheque holder trying to black mail .i have issue a cheque to a supplier for the supply of furniture to my school . but he had not supply the furniture to my school . the cheque is the schools name and i am the director of the school .can he file the case of 138 ni act against the school . cheque is post dated and the date of the cheque is in september 2013. how can i protect the cheque. can stop payment will work ? please suggest .
V R SHROFF
(Expert) 11 April 2013
stop payment alone do not work
You can protect ur self from 138 ni act after issuing the cheque. You issue a notice to supplier that u have issue a cheque to supply furniture to my school . but you had not supply the furniture to my school . So return the cheques issued, do not deposit it, as you already instructed bank for stop payment cheque.
It is enough to protect you. as is post dated September 2013. You instruct bank for stop payment
DEFENSE ADVOCATE.-firmaction@g
(Expert) 11 April 2013
It is nice of experts to have suggested you an alibi.
And even though I am an aggressive defense lawyer and of the conviction that any cheque bounce case can be won by the accused if properly contested from day one.
However your story has no substance.How it is that without any proper written agreement you parted with a cheque.
Cheque is from your account, you have signed it and if bounced the law presumes your basic guilt and hence liable for criminal action if payment not made.
You will have remedies on basis of various lapses in issue of notice and framing of pleadings in the complaint which are always there with expert legal aid.
B K Raghavendra Rao
(Expert) 11 April 2013
NI Act is applicable only in cases where cheque is issued for discharge of a legal liability. In your case there is no liability to pay the money. Hence, NI Act is not attracted.
However, to safeguard your interest you need to cancel the purchase order in writing giving detailed reason for doing so and call for return of the particular cheque. If he does not return the cheque, cause a legal notice to him.
This should be enough to tackle your problem. Your worry is unfounded in view of the above.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 11 April 2013
Please visit any criminal court any where in the country where the accused are routinely convicted for cheque bounce cases on such type of defense.
Supreme court has given no of judgments and very recently Laxmi Dychem case where the SC has laid the rule that the cheque bounce is genus and all other reasons are its species.
So unless there is credible defense valuable time is lost to take benefit from the lapses of the complainant which are always there.
ajay sethi
(Expert) 11 April 2013
complainant has to prove that cheque was in respect of debt due and paybale . if cheque was issued on basis of purchase order and no furniture has been supplied then accused cannot be convicted as there is no debt due and payable .
DEFENSE ADVOCATE.-firmaction@g
(Expert) 11 April 2013
This is the story of the accused that cheque was issued for supply of furniture and it is not supplied, we do not know what is the story of the complainant.
Please go through the rulings of SC -
Reliance was also placed on paragraph 17 of the judgment of this Court in the case of M.M.T.C. Ltd. and Another Versus Medchl Chemicals and Pharma (P) Ltd. and Another, (2002) 1 SCC 234 which reads as
under:
"There is therefore no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the respondents.
Thus they have to discharge in the trial. At this stage, merely on the basis of averments in the
petitions filed by them the High Court could not have concluded that there was no existing debt or liability."
We, therefore, grant one month's time from this date to the respondent herein to pay a sum of Rs.80,000/-
(twice the amount of the cheque) by way of Demand Draft drawn in favour of the appellant and payable at
Goa (in the address given in the paper book). In default thereof, the respondent shall suffer simple
imprisonment for six months.
Another portion of ruling from VERY RECENT LAXMI DYCHEM SUPREME COURT CASE.
17. It was contended by learned counsel for the respondent that the respondent-company had offered to issue new cheques to the appellant upon settlement of the accounts and that a substantial payment has been made towards the outstanding amount. We do not think that such an offer would render illegal a prosecution that is otherwise lawful. The offer made by the respondent-company was in any case conditional and subject to the settlement of accounts
SO WHAT I WANT TO TELL ALL THE ACCUSED THAT YOU CAN COME OUT OF THE CASE BUT BY CREDIBLE DEFENSE AND NOT JUST LOUSY STORIES. AND THE BEST WAY IS TO TAKE ADVANTAGE OF LAPSES IN NOTICE AND IN PLEADINGS.
