Summons under section 138 ni act
Navi
(Querist) 11 March 2013
This query is : Resolved
Sir
I had an agreement with some company and as per the agreement clause I gave undated certain amount cheque as performance cheque condition mentioned in agreement clauses. That I had certain dispute with the company so I filed writ in high court for stay in the work as well as stay for my cheque and I stopped payment of the cheque.
That High court after few dates refered to arbitration where the case is still pending from past 1 year.
That after few months I was sent notice of 138 NI by company who had presented my performance cheque in the bank. I had replied them back through my advocate with all the proofs that it is performance cheque as clearly signed and mentioned in the agreement.
Also I have signed copy of cheque clearly stating cheque towards performance security. But still they filed the case and now after more than 15 months, I have been summoned.
Now what should I do?
Plz help
Advocate M.Bhadra
(Expert) 11 March 2013
You should appear to the Court through a lawyer and file all documents that you have filed a case in High Court and order of the High Court sent to the Arbitrator, same is pending to dispose off.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 11 March 2013
There is simple age old rule of defense that if you are trapped in a problem you can not come out form the front what ever you do , you have to always find side way loop holes to come out from it.
1) Many accused from day one claim that they had given security cheque or blank chaque and they have evidence.In all those cases the person deposing had given admission that cheque was security cheque or blank cheque.
There few solitary decisions at HC level about security cheque but it was after clever cross by the defense., who was able to bring these admissions.
Now very recent SC citation has closed all such doors and given the opinion the that cheque bounce is genus and all other so called reasons are species of genus.
2) Accused and legal people not having experience of fighting cheque cases make blunders and in fact handle the case which goes against their client.
WHAT CAN BE DONE.
1) You have to go through notice and pleadings in the complaint where there are many, many and many mistakes.
Replying of cheque bounce notice is biggest mistake which most of the people do since by reply you have admitted many imp issues which otherwise the complainant had to prove and have closed so many doors of defense.
2) Find technical faults of law and facts in notice and in pleadings , documents of complaint and fight on those points first and exhaust the opponent.
Well actual line of action will change from case to case.
Navi
(Querist) 11 March 2013
Should I go for the bail or provide proofs like High Court orders and copy of cheque stating to be performance cheque with date of almost 2 years back with the note.?
Devajyoti Barman
(Expert) 11 March 2013
You better first go to high court and file petition for quashing.
Once stay is granted you need not appear and pray for bail in lower court.
