Section 138
Mohammed Sharif Mistry
(Querist) 11 October 2012
This query is : Resolved
i had given a cheque to a party and the same was bounced. The party gave me a notice and thereafter agreed to collect a fresh cheque and had returned me the bounced cheque. The agreement was made on a stamp paper of Rs. 100/-, the original copy is with the party and zerox with his original signs with me. Party had agreed not to file a case and this was also mentioned in the agreement. But party filed a case against me under section 138 for the cheque which was returned to me. Hence i sent him a notice through advocate to withdraw the case or else i would make stop payment of the fresh cheque. The party did not respond and i gave stop payment instructions to the bank. Party presented the fresh cheque, which bounced with 'stop payment' instructions, gave me a notice which i replied through my advocate explaning the reasons for stop payment. Despite that the party filed another case for the fresh cheque. The first case has been discharged after the period of 2 years in the court as the party has failed to produce the proof ie. the original cheque. The second case is under trial. Now can anyone guide me about the result of the second case file against me?
ajay sethi
(Expert) 11 October 2012
did you have sufficent funs in your account when cheque was dishonoured on presentation ?
you have to stick to your defence tht inspite of agreement party filed case . hence stop payment instructions were issued .
it is better you settle with the complainant and make full payment .
no sense in fighting in courts . there must be a debt due and payable . hence you had issued cheque .
Mohammed Sharif Mistry
(Querist) 11 October 2012
Sir, Thank you for the reply. I had sent a notice by Regd A.D. throuh an advocate to the complainant 3 months before the fresh cheque was presented and had clearly warned that if the previous case was not withdrawen i would stop the payment of the fresh cheque. Sir, can one file two cases for the same amount at a time in this manner?
Sir, i had attended the court for the last 2 and half years, but the compalintant didn't appear in the court and hence the case was discharged. He had cheated with me. I had borne all the expenses and pain. Hence i want to fight against him in the second case. Would the section 138 attract if there is a bonfaide reason to make the stop payment?
ajay sethi
(Expert) 11 October 2012
you have to face trial . once cheque has been dshonoured and you didnt have sufficent funds in your account complaint under section 138 Ni would be maintanable . you have to prove therir is no debt due and payable
