ARBITION AND 138
ARUN KUMAR KAPOOR
(Querist) 16 August 2009
This query is : Resolved
SECURITIES MISUSED MY TRADING ACCOUT THAT IS TRADED THEMSELVES AND MADE LOSSES BOUGHT THEN FINALLY SOLD THEMSELVES I STOPPED PAYMENT OF CHEQUE , I APPROCHED NSE AND FILED CASE UNDER ARBITATION ACT THAT IS UNDER PROCEEDINGS. THEY MADE CASE AGAINST ME UNDER 138 . . WHAT SHOULD I DO TO REMOVE 138 CASE AS THE MATTER IS STILL UNDER ARBITATION. -- DR. ARUN KUMAR KAPOOR, 398-R, MODEL TOWN, PANIPAT - HARYANA 132103. MY DIECT CONTACT NUMBER- 09215264888. MY EMAIL ID. ruhi.rohan@yahoo.com------if some body is misusing the cheque what we can do only to stop payment then why 138
Kiran Kumar
(Expert) 16 August 2009
Hon'ble SC has delivered a very important judgment on applicability of S.138 of NI Act.
Raj Kumar Khurana v/s State of (NCT of Delhi) and anr.
Criminal Appeal no. 913 of 2009 decided on 5.5.2009
SC says offence under the aforsaid sec is made out only when the cheque is returned by bank unpaid for the following reasons:-
1.) amount of money standing to the credit of that account is insufficient to honour the cheque.
2.) If exceeds the amount arranged to be paid from that account by an agreement made with that bank.
this judgment is going to have big implications and thus in cases of stop payment or cheque loss complaints the offence under above said Section will not be made out.
now look for this judgment and read it carefully, i think ur purpose will be solved.
Arbitration proceedings are civil in nature and does not affect the criminal proceedings, however offence under S.138 NI is compoundable under S.147 NI.
if u are able to show that there was not legally enforceble debt then u wont get convicted under S.138 NI.
otherwise u can use ur Arbitration matter as a matter of defence.
consult ur lawyer and tell him the judgment i referred above, he will make out a case for u.
A V Vishal
(Expert) 16 August 2009
What are the terms of the trading account govern the issue, your grievance is that the trading account is misused, which cannot be possible without your knowledge or authorization. The cheques are issued in lieu of trade contracts. The matter is referred to arbitration is not of any bearing on the cheques presented by the party since both are two different matters governed by different laws. The party may have presented the cheque in view of the limitation of 6 months for presentment of cheque from the day it was issued. Advise to contact a senior advocate locally along with all documents for advise.
Adinath@Avinash Patil
(Expert) 16 August 2009
Dear Arun, N.I.Act sect.138 is criminal complaint & Arbitration proceedings are civil nature.Hence I suggest you to appear in N.I.Act sect.138 and take defence of you have filed Arbitration proceeding against complainant.You also take defence of there is not legally enforceable libility.
MANISH
(Expert) 23 August 2009
Sh. Adinath @ Avinash Patil has advised the best.
You may take the certified copies of the Arbitration agreement from the arbitration tribunal, and may file the same in the court where the case u/s 138 is pending.
But remember you have to do so as per the requirements u/s 8 of Arbitration and Conciliation Act, 1996.
