Police complaint
CreateGoodwill
(Querist) 01 August 2013
This query is : Resolved
We have sold 25L material to dealer he has issued a chq against it later stage he has sent the mail not to deposit the chq will pay after few days and made stop payment of the chq. later he has issued another chq. for 25L and informed to deposit after 15 days ... later again send not to deposit and issued 5 lacs DD later 3rd time he had issued a chq for 20L which was depostied in Bank and return Stop payment... i have sent NI 138 notice can i file now FIR against breach of trust etc.. pl suggest
Advocate M.Bhadra
(Expert) 01 August 2013
If you want to file a case u/sec.138 Cr.p.C. then you can not file an FIR for same cause of action. Moreover cheque bounce is a compoundable offence which is Magistrate trial. Irrespecting the N.I.Act you can file a case u/sec.420 IPC.
Ruling that 'Stop Payment' is also a reason the cheque gets dishonoured, the Aurangabad bench of Bombay High Court has brought the practice of Stop Payment under the purview of Section 138, Negotiable Instruments Act, 1881 (dishonour of cheque for insufficiency of funds in the accounts).
A 'Stop Payment' is a well-accepted banking practice to be used when a cheque goes missing or there is an error detected by the drawer. All banks have provisions to enforce 'Stop Payment'. A customer can give standing instructions to his bankers to stop a payment. In such cases, bank issues a memo to the drawee that says "stopped payment", "refer to drawer" or "A/C closed". This helps the drawer escape the penal provision of Section 138 of the N.I. Act which again looks at the two ingredients as above.
However, the above scenario is very commonly misused to avoid a payable debt or liability. Section 138 of Negotiable Instruments Act, which is very commonly resorted to (in conjunction with Sec 420 of Indian Penal Code [IPC]) in cases of dishonour of cheque, is silent on the aspect of 'Stop Payment'.
V R SHROFF
(Expert) 01 August 2013
THOUGH BOTH REMEDIES [138 + IPC 420] are available,
in 420 more depends on co-operation of Police.If they co-op, recovery is fastest.
Otherwise nobody stop you 138, which though delay, is effective. .
CreateGoodwill
(Querist) 02 August 2013
Dear Bhadra Sir,
in communicatin he has mentioned against your invoice no do not deposit the chq for 15 days later made stop payment... again confirming on mail for 2nd chq & later sending the mail he does not have funds to clear the chq. so do not deposit...
we had no option left as chq date was getting expired so we had to deposit the chq. pl suggest further course I would go
