Undated cheque used for leagl case under sec 138
anu
(Querist) 23 March 2012
This query is : Resolved
sir, gud evening, want some detail suggestion from urside- I am employed with the PVT ltd. comp in november 2011 which was having the policy of bond of 2 yrs with the submission of 2 undated cheque , one of rs 100 for account verification and other of rs 2lacs in favour of company for security purpose which was signed but without date, sir, i didnt attend the organization since january 2012 on the ground of medical leave which was mailed to them with scan copy. they have suit the legal notice to me against sec-138 instead of the notice for my medical leave. But haven't attended the notice.Please suggest what to do?
In my view i have following idea to resolve please suggest where it is right or wrong:-
1) should i extend more on the basis of medical ground?
2) If i join the organization again and they again ask for a cheque for security purpose, and if i deny to pay them and defend from my side that i m here to join the org but still they are not accepting me, then what can i do?
3) being a girl dont want to face the court and also being in a lower middle class family cant bear 2 lac ruppes please suggest.
SAINATH DEVALLA
(Expert) 23 March 2012
Dear Anuji,
How come you have become eligible for medical leave within two months of joining the company.This is quite rediculus.You should have thought for a while before giving the bond and the security cheque.Did you draw your salary for the month of December?
Answer me the following questions?
1.You have already given a security cheque for 2 lakhs
2.How do you think you would be permitted further medical leave.
3.Are you presuming that they will ask for another security cheque.
Anyway your query is not completely clear.You are not comming out with the actual facts.
anu
(Querist) 23 March 2012
Hi Sainath sir,
Please find the below details:-
1)Yes I have drawn the salary of december.
2)I only send the mail to them that i am unfit suffering from backache and also dropped the scan copy of the medical report.I am not sure that further medical leave is applicable or not.
3)Yes, i have given the security cheque of Rs 2 lacs which is in favour of company's name and is also undated.
4) Yes, I presume that they may ask for another cheque, no idea about it.
Let me know, if they dont ask for another cheque and i join the organization again then will I be free from the legal case suit on the basis of dishonour of cheque?
PARTHA P BORBORA
(Expert) 23 March 2012
i think there is a specific agreement between u and your employer and on the strength of that they are trying to exploit you. They are bound to grant a genuine medical leave. This is illegal even of the fact that there is an agreement. they has no power to exploit you. So you should refuse the proposel of re joining their service with new terms. Otherwise your employer shall exploit u again and again with new demands. You should inform the next higher authority of your employer in black and white. Write to women cell of your locality. Do not hesitate to fight this kind of situations. Write the matter the human right commission. Write a simple letter in your own language addressing the local woman cell clearly describing the story and just post it and no lawyer is necessary to do so. Do not compromise and fight. Good luck for that.
Shonee Kapoor
(Expert) 23 March 2012
There has to be an agreement between you and your employer.
If there is none, you can be discharged.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
DEFENSE ADVOCATE.-firmaction@g
(Expert) 24 March 2012
In cheque cases all such stories are not detailed in court cases.
The law is simple and short- 1) cheque from your account 2) it is bounced and 3) did not pay after notice.
So if case is filed you have to appear and face the trial , however there are other no of simple Eascape routes to come out of any cheque bounce case.
Sudhir Kumar, Advocate
(Expert) 24 March 2012
If he has got 138 notice then the cheque is really bounced.
The agreement if existed wa probably against resignation. It does not mean that the person cannot fall sick (evenif no medical leave is admissible). If no medical leave is admissible still company cannot expect a medically sick person to report they can at the most deduct salary or evne terminate him.
As suggested by mr Shonee Kapoor if there is no legally sustable agreement then crinal proceeding under section 138 may nto succeed.
But he has to pay the price of signing such a cheque and adding his contirubution to the malpractice.
PARTHA P BORBORA
(Expert) 24 March 2012
You have a good defence in ur 138 N I Act case if you have an appointment letter, a salary account and the e mail and the scanned copies of the medical report with its original. Contest the 138 N I Act case. Appoint a lawyer experienced enough to deal with digital and ciber law.
R Trivedi
(Expert) 27 March 2012
Generally a financial bond of this nature is filled up if the employer spends certain amount of money on the training of the employee. Now you joined the company in Nov 2011 and are on leave from Dec 2011 itself. So please find out if they spent any money on you. Also it would have been specified that after completion of training or so much on job period, if you leave the company then you are liable to pay the bond amount.
It is very clear that security cheques are no longer part of S.138 of NI Act, if the fresh consent by the drawer is not given to the holder.
Worst part is lower courts take cognizance based on bounced cheque and complaint, so you may have to fight it out. You may have to approach the HC under S.482 for quashing of the complaint against you, if you want to get rid of the harassment. Or on your first date (if summons are already issued to you and also do not forget to respond to the notice with facts), before charges are framed, submit to the court that it is the case of this nature and framing charges shall put into unnecessary harassment. Hire a decent lawyer, take personal interest in the case.
anu
(Querist) 27 March 2012
@R Trivedi,
they have only provided me the salary on part of my work, no training has been given.
and in case if I try to do petition how to process further?
Shonee Kapoor
(Expert) 30 March 2012
Then it would be a case where you ought to have served the company a notice before leaving.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
