138 / cheque bounce
harshal k
(Querist) 11 April 2013
This query is : Resolved
I have received 30L cheque from builder. I have sathe Khat notari for property. but later after that sathe khat / kararnama, builder everytime postpone for agreement. But i received the cheque for my money but it got bounced after sending to bank. I am already doing legal procedure. sent notice on his address of different city, lawyer got postal receipt but we dont know whehter builder himself signed it or got it . but builder has came to know this. still after 10 days of notice he has not properly told about return of money . so we will make 138 court case. for the i came to knoe i have to pay stamp duty of almost 60k. My question is how much time it will take to get my money back.. whether i will get back or not? and what happen about this stamp duty money if i win or lose.. whats the further way..
V R SHROFF
(Expert) 11 April 2013
file 138 case
If you paid 30L by cheque and having Agr notarized, showing that amt, you won 60%.
Why not go for specific performance & demand property for which u gave money??? What you demanded by ur Legal notice?? Once u accept these 30L chq, you cannot demand property.
Plan your Legal battle well.
Decide what you want? Money or property??
Why not lodge Police Complaint for cheating 420??
If u win 138, compensation will take care of your litigation expenses of 60k court fees.
Court will take time depends upon you go for fast track courts/ burden on ct, attitudes of both Advocate etc. Say 1 year min to 3 yrs max , depends on which court.
harshal k
(Querist) 11 April 2013
thanks is it necessary that opp. person who has given the cheque must get notice in his hand? only address receipt of notice received is sufficient to serve notice
V R SHROFF
(Expert) 11 April 2013
Once posted on true and correct last known address is enough. Your duty is over with posting.
harshal k
(Querist) 11 April 2013
from your exp. can you tell approx how much time it takes to resolve the case and get back amount. As it very big amount for me.. but not much for builder. Do court process 138 cases fast or it just take same way for yrs and yrs.. dates after dates to resolve this cases. Sorry but this is my fist court case in my life and hope it will be last...
harshal k
(Querist) 11 April 2013
As I dont have agreement with me.. Now i came to know builder already sold property to some one else without information to me. So builder is complete cheater. Thats why I want to get my money back with interest .its no point in dealing again with same person for property as he may harrass me for other pers like sale deed etc later on.. so again its court/ consumer court.. No I am already got bad experience so no more deal with builder.. other than getting money back.
harshal k
(Querist) 11 April 2013
I have paper called sathe karar with 100 bond paper notarised.
Raj Kumar Makkad
(Expert) 11 April 2013
I slightly differ with the opinion of Shroff. You need to move ahead and should file a criminal complaint under section 138 NI Act after waiting the period of 15 days of the receipt of the notice and no stamp duty is liable to be paid in this event. No court fee is required to be affixed thereto.
If you simultaneously file a suit for recovery with interest then you need to deposit the stamp duty. You should also file it. The time cannot be anticipated, however, you should make your mind that a period of approx. 3 years may eb required.
harshal k
(Querist) 12 April 2013
Thanks ..
Ohh my god,3 yrs to get my own money back ? But i heard 138 case resolved fast.. but now it does not look sooo..
sorry for my confusion but.. 138 case also give u my money back or its just for punishment .. and whether I need to do one more case to get my money ... !!what i understood, if opp. person found guilty court will order him to return money with interest or punish him in 138 ... correct me if i am wrong.
Nadeem Qureshi
(Expert) 12 April 2013
Dear Harshal
its depend on the court, if court take cognizance and start the trial as a summary Trial then within six months the case will be disposed off, if the court take cognizance and adopt summon case then there is no time limit.
read section 138 of N.I. Act
138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid. either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice. to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless-
(a) the cheque has been, presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course. of the cheque as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.- For the purposes of this section," debt or other liability" means a legally enforceable debt or other liability.
Feel Free to Call
DEFENSE ADVOCATE.-firmaction@g
(Expert) 12 April 2013
LEGAL PROCEDURES ARE NOT CAKE WALK.
If you need your money back and want the builder to face the music of legal system than Mr Shroff has suggested for specific performance. Do it without bothering of costs and time.
In case of NI 138 which in my opinion any defense advocate with proper inputs can get the builder out., there will be only harassment but if exemption for appearance is granted than that will also not be there.
You can also file summery suit for recovery which will be quick and sure.
ajay sethi
(Expert) 12 April 2013
summary suit will yield faster results
harshal k
(Querist) 12 April 2013
Thanks all ..
so what I have to do is case for 138 / summary suit as per Mr. Sethi and 420 case also..
Advocate Defense-- I dont expect cake walk but Atleast to get my money back from cheater 420 builder.
harshal k
(Querist) 12 April 2013
Can Anyone tell me.. whether my wife can attend hearing/ dates in court, if I am not avaialable, as I have already made power of attorney and due to my Job I have to go out of town frequently .
prabhakar singh
(Expert) 12 April 2013
Well your wife can attend dates but your presence would be required at the time of evidence as you are the payee of the cheque
and facts are in your personal knowledge.
Evidence of your wife on your behalf would be treated hearsay and would inadmissible evidence as per law of evidence.
ajay sethi
(Expert) 12 April 2013
in summary suit you don t need personal appearnce on each date . in 138 Ni your wife can attend but your presence will be required at verifcation stage , evidence stage etc
