cheque bounce
agapi
(Querist) 14 June 2009
This query is : Resolved
Hello!
Let me explain you my problem in details....
I was interested in purchasing one flat and have given 8.5 lacs rupees in cash to a person in january,2007. There was an agreement for sale signed by me and that person. In March,2007, I went for the registration of that flat. I was shocked when I was informed that that flat did not belong to the person who had signed the agreement for sale.
I went to that person's home and he told me sorry and requested me not to give him before police citing his aged father would suffer and had given me one cheque of 8.5 lacs rupees payable in august,2009. And he also promised me that he will pay me 18% p.a. interest for this delay.
I returned him the agreement for sale after obtaining the cheques.
Now, I have verified recently that that person has a few thousand rupees in his account which means the cheque will bounce if I will deposit it.
My question: If I have no documents except one cheque, is it possible for me to get justice from Indian court?
Manish Raghav
(Expert) 14 June 2009
hi
if you are the holder of the cheque the presumption is in your favor that the person who has issued a cheque has some debt liability towards you. the presumption is rebuttalable presumption. What you can do is that you present the cheque and if it bounces you have both civil and criminal remedies available with you to get you money back . you can file a case under section 138 NI Act and Suit for recovery, you can also file a case under section 420 etc.
A V Vishal
(Expert) 14 June 2009
Dear Agapi
Every day you are coming up with a new thing, please give the corrct details, you are misleading the professionals here
Uma parameswaran
(Expert) 14 June 2009
Cheque is a sufficient document for filing under section 138 of NI Act. If you can, try to collect the documents in relation to the agreement is also favourable to your case.
Kiran Kumar
(Expert) 14 June 2009
i agree with Vishal.
dear friend, dont try to use the legal tools as per ur whims.
pls state the correct facts so that u can be guided properly.
the other day u said the cheque was a gift, the kind of query u ve raised now is rather more serious, it is not just confined to S. 138 NI Act.
better u visit some local lawyer, we dont know which city u belong to, but pls visit some good lawyer and state ur facts truly so that something good can be done for u.
Uma parameswaran
(Expert) 14 June 2009
If a Cheque is bounced for insufficiency of fund then section 138 of NI Act is attracted. Please read the section 138 of NI act.
agapi
(Querist) 15 June 2009
Mr. Kiran Kumar and Mr. Vishal,
I am shocked that you both have undetstood that I am misguiding you. Mr. Kiran Kumar is telling that I have told the other day that this cheque was a gift!!!!! But I never told that. I am categorically denying that I have ever told you that the cheque was as 'gift'.
agapi
(Querist) 15 June 2009
I was told that I will have to prove that the cheque was given to me for clearing debt or liability only when the opposite party has already proved that the cheque was given as gift. So, if the accused cannot prove that the cheque was given as gift then also I am bound to prove that the cheque was given to clear debt or I am not bound??? THANKS............
IT WAS MOST PROBABLY THAT QUESTION ABOUT WHICH MR. KIRAN KUMAR IS SAYING THAT I HAVE TOLD HIM THAT THIS CHEQUE WAS A 'GIFT'.
I CAN UNDERSTAND THAT MR. KIRAN KUMAR IS AN EXTREMELY BUSY PERSON SO HE OVERLOOKED THE POINT WHICH I WANTED TO ASK---- WHETHER I HAVE TO PROVE THAT THE CHEQUE WAS GIVEN TO CLEAR DEBT ONLY WHEN THE ACCUSED WILL BE ABLE TO TAKE A BONAFIDE DEFENCE OR NOT???
A V Vishal
(Expert) 15 June 2009
Dear Agapi,
In fact I have a suggestion, when you have approached the fora for advise you should present the facts of your case in clear terms, as evident from the questions posed by you on different dates and this instant query everything is confusing, you should ask the query stating the full facts and any specific question you have relating to the facts.
Kiran Kumar
(Expert) 15 June 2009
Dear Agapi,
giving advice is a part of our work, we may miss few things when the facts are not being stated properly or completely.
yes i do have work and i remain busy but i shall still advice you please state complete facts, Mr. Vishal is doing a classic job for u.
Whether its me or Mr. Vishal or some other Ld. counsel we all contribute here with all our competence without charging even a single paisa....our purpose is to support the aggrieved.
Manish Singh
(Expert) 15 June 2009
Dear Mr Agapi,
I am not well versed with the dispute which arose between our learned members with you, but pls make ensure that we should not be misguided in terms of queries or otherwise since we take our hard time out to provide opinion here and it really satisfies our souls to serve you people but if we feel cheated then it hurts us.
the query posted by you here have the answer in yes. yes you are free to take legal action under 138 of negotiable act once the cheque gets bounced. but t can take place only when the cheque become valid i.e. after its due date. the burden to proove that no liablty exists shall be on the issuer of the cheque.
PARTHA P BORBORA
(Expert) 15 June 2009
yes my friend. u pl deposit the cheque and if it dishonored by the bank as a result of insufficient found, ask ur banker for a memo showing the cause of dishonor. after getting the memo u have to send a notice through ur lawyer demanding to pay the amount within 15 days from the date of receipt of the notice. of the demand is not fulfilled u can file a case U/S 138 of N I Act. remember one thing- that, u must send a notice within 30 days from the date of receipt of the information that the cheque was bounced and u must file the case before the Court after laps of a period of 15 days from the date of receipt of the notice given by u.so pl consult with a lical criminal lawyer.
adv. rajeev ( rajoo )
(Expert) 15 June 2009
U have to prove the legally payable debt. Ofcourse cheque is with you. You have to send it for collection, only after receipt of unpaid cheque then you will have to issue notice within 30 days from the date of receipt from the bank, giving 15 days time to make the payment of the cheque amount then after lapse of 15 days within 30 days you will have to file the complaint.
To prove the legally payable debt, if the agreement of sale was registered then u take the certified copy of that. so it will be much helpful to your case.
PARTHA P BORBORA
(Expert) 16 June 2009
Mr. Agapi
In my opinion it is not necessary to prove in a case u/S 138 NI Act that the cheque was given against a debt or not. As in a case U/S 138 N.I.Act it shall be presumed that the cheque was given to the complainant ageist a legally payable debt. It is the burden of the accused to prove that no such liability existed. The burden not lies on the copt. It is the accused the burden lied with as per the provisions of the N.I. Act.
Manish Singh
(Expert) 17 June 2009
Dear Mr. Vardali,
under negotiable act, the liablity to prove that no liabilty exists on the part of the issuer always lies on the issuer and not on the drawee. it has been a held by several judgments. the judicial perception is that if a cheque is issued then that must be issued in respect of some liablity, so it is always on the issuer to prove that no labilty exists on his part.
