138 of N I Act

Ganesh Vaddiraj Advocate (Querist) 28 August 2009 This query is : Resolved
please post the latest S C judgement on the point liability cheque, weather stop payment can be prosecuted under 138 of N I Act

thanks in advance

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Y V Vishweshwar Rao (Expert) 28 August 2009
As per the latest Judgment the Cheque returned un paid on account of insufficients funds and exceeded the arranged limits, have to be considered for case U/s 138 of NI Act

A. A. JOSE (Expert) 28 August 2009
If sufficient funds were available in the Bank Account when the stop payment was given, i.e. amount exceeding the amount of the cheque in question, S.138 cannot be attracted; otherwise surely yes.

Kiran Kumar (Expert) 28 August 2009
http://lawyersclubindia.com/forum/message_display.asp?group_id=7698

pls follow the above link and find out the latest position of law.

Adinath@Avinash Patil (Expert) 28 August 2009
If insufficiant amount in accont And payment stopped proceeding u/s 138 N.I.Act
attract.

Bhumik Dave (Expert) 28 August 2009
Only when amount is insufficicant than & than stop payment is considering in NI ACT.
Please refer Mr. Kiran's answer 4 details information.

Sarvesh Kumar Sharma Advocate (Expert) 29 August 2009
GANESH JI,
noted-
Jagmohan v state of u.p. And otc. ACC 2005
(51)-277=jic 2005(1)-396

Sarvesh Kumar Sharma Advocate (Expert) 29 August 2009
ifn u will remind me towmarrow dn i give u some other rulings. on this point.

Dhiren Akbari (Expert) 29 August 2009
which date is should be considered to decide the sufficiency of funds? date of cheque? date of clearing? or date of passing the instruction to bank for stop payment? according to me date of instruction to bank is decisive.

Hypothetical situation-1: on 29-08-2009 i am issuing one post dated cheques of Rs. 1,00,000/- Dtd. 05-09-2009. my bank balance on 05-09-2009 was Rs. 95,000/-. i passed stop payment instruction to bank on 03-09-2009 on which date my balance is 1,95,000/-. cheque was presented for payment on 07-09-2009 on which date my balance was 1,95,000/-. cheque returned. whether action u/s 138 can be taken as per SC judgement?

your opinion please.

n.k.sarin (Expert) 29 August 2009
Mr. Dhiren date on which cheque was presented to the bank for payment is a date on which your bank balance must be above as mention in the cheque.

vinjamuri ranga babu (Expert) 29 August 2009
hi,
for stop payment of a cheque, the burden is on the accused to prove and why such type of instruction was given, if it is a genuine one, then he can escape, otherwise, he will be punished under law.
vr

Shyam Ji Srivastava (Expert) 30 August 2009
DearGanesh
Latest citation is
2009(2)BANKERS JOURNAL PAGE 713
m/s Amolok Textiles Vs. M/s Uphar Fashions

Thanks

Shyam Ji Srivastava
Senior Advocate
09839028040

vinjamuri ranga babu (Expert) 31 August 2009
hi,
stop payment is also come under perview of 138 but, it is for accused to give reasons for stop payment, then cout will pass appropriate orders.
vr

Adinath@Avinash Patil (Expert) 02 September 2009
Mr. Ganesh ,
Latest judgment for your query.Go through Criminal appeal 913/2009 decided on 05/05/2009 by Supreme Court.Rajkumar Khurana v/s State [NCT Delhi]

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