Section 138 cheque bounce
ANISH KHANNA
(Querist) 08 August 2015
This query is : Resolved
Respected and learned experts.
I need a advice
Case .My wife had purchased a property in her name only and was registered in sub registrar office. a small part payment of Rs 2 Lacs and 3 Lacs were paid by chq . and both the cheques were bounced .
Please note Rs 2 lac chq was from my wife account HDFC bank and Rs 3 lac was from her husband account ICICI Bank . now the complainant has filed a single case with two accused husband and wife. under section 138
My question is
1st Can the complainant file a single suit under section 138 for two different accused ( husband and wife )
2nd we have taken bail for both accused but can we pay Rs 2 Lac of wife and get her name removed from the case .
3rd can the case be dismissed
sir early revert will be appreciated.
P. Venu
(Expert) 09 August 2015
The wife purchased the property.
Necessarily, she is the first accused in both the transactions.
It appears that the query is not fully honest with the facts.
Guest
(Expert) 09 August 2015
I feel it is an academic query, rather than your real problem.
However, please clarify the following six points:
1) Are you co-owner of the property?
2) Has every action pertaining to the transaction done by your wife without your knowledge or assistance?
3) Is your account a single account with you as the sole account holder, or joint account with your wife, if cheque was issued from your account?
4) What exactly was the reason of bouncing of cheques of both of you, simultaneously?
5) What action was taken by you and your wife to clear the liability of bounced cheques of both of you?
6) Have you engaged a lawyer to defend your case? If so, what is his opinion on your queries?
SAINATH DEVALLA
(Expert) 09 August 2015
If two cheques belonging to two different banks are given by two persons though for the discharge of a single liability,two different statutory notices have to be issued for both of them,though a single case can be filed. A single notice is maintainable only if it is a joint account.
U have to come out with some more facts for a better analysis.
ANISH KHANNA
(Querist) 09 August 2015
Dear Mr.P.S Dhingra
Ans to your Question
1. No i am not a co-owner
2. Every transaction was done by me , Her property was in her name only to save stamp duty.
3 . She has her individual account and i have a different individual account > No JOINT account Rs 2 Lacs was from her account and Rs 3 L was from my account>
4.INSUFFICIENT funds, Both the cheques were returned 1 day before expiry of 3 months . that is the validity of the chq.
5.we both dont have funds as of now as our bank loan was lower by 5 Lacs . we want to pay it but need time .
6. Yes we have a lawyer . We both have got the bail . but he is saying that we will get the case dismissed as there are be two different accused there should be two different cases .
Request you to please help with a appropriate advice
ANISH KHANNA
(Querist) 09 August 2015
Dear Sainath Devalla
yes you understood correctly that If two cheques belonging to two different banks are given by two persons though for the discharge of a single liability. But husband that is me,is not a co owner of the property.
Can my wife pay Rs 2 Lacs of her chq issued and be out of the case and i dont have a stake in the property so question of my liability do not arise and can my case be dismissed .
I want to pay but need time on legal tangel exploring the legal ways
Guest
(Expert) 09 August 2015
Thanks for your clarifications.
However, your lawyer seems to have given false hope, if he has assured you to get the case dismissed merly on technical ground of assumed two cases for two accused.
He should not have thought the lawyer of other side as merely an idiot having not taken that point in consideration. An important point must not be forgotten about likely intentions behind the transaction, as invalid cheques can easily be assumed to have been given to cover up fraudulent transaction, when there was no balance in both the accounts and there was also no likelihood of recoupment of balances in the respective accounts for the whole period of their validy and more so, when you have not taken any step to clear the liability all along for three months. Please remember, you have virtually not given any answer to my query #5 satisfactorily, when I specifically asked for steps taken by you to clear the liability.
Had even one of the cheques been honoured, you could have got an easy excuse for the other cheque.
So far as your need for some time to pay, it solely depends upon the willingness of the petitioner. The judge may have to see the gravity of the case, as would be presented by the opposit lawyer before him.
Anyway, YOU NOW ACTUALLY HAVE THE NEED to get all your case related documents examined in detail by some expert FOR HIS ADVICE, before your lawyer damages your case by merely concentrating on the theory of single point of two accused- two cases.
SAINATH DEVALLA
(Expert) 09 August 2015
Whether U are a co owner or not the purpose for which he cheque has been given will be established by the bank.Mere giving cheque is not the criteria,but U must have also signed various documents along UR wife. I am not dismissing UR liability with the bank,U R bound by it.
We don't have funds: this is what every dafaluter says finally.
Exploring legal ways,well now it is left to U to settle the matter without legal hurdles or UR lawyer will have to deal with all his wisdom.
Earlier I was only appraising the legalities but not exonerating U from the liability.
P. Venu
(Expert) 11 August 2015
This forum, as I understand, is meant for offering assistance to those struggling because of law. However, the queriest in this case is prodding us to make law struggle.
I am afraid, as such, the query amounts to an abuse of this forum.
T. Kalaiselvan, Advocate
(Expert) 15 August 2015
If you admit your signature in the cheque then your liability is proved.
On further issues, I go with the views of expert Mr. P. Venu.
ANISH KHANNA
(Querist) 16 August 2015
Dear Experts
Sorry as i admit that i was finding ways for gaining time from the court in my above mentioned case .
I once again request that please advice on my question.
Case
Property owner - Only my wife
it is not a joint property.
I ( Husband ) issued a chq of Rs 3 Lacs from my individual account. ( Bounced )
My wife issued a chq of Rs 2 Lcas from her individual account ( Bounced )
We admit that we have a liability,
Now my question is
1st If My wife pays Rs 2 Lacs against her bounced chq , can she be out of the case as she only signed on her chq of Rs 2 Lacs.
2nd Can i ( Husband ) the second accused can continue with the case proceeding
SAINATH DEVALLA
(Expert) 16 August 2015
I presume U have not understood what the legal experts have adviced U .U R repeating the same thing continuously.
ANISH KHANNA
(Querist) 16 August 2015
SIR I HAVE STILL NOT UNDERSTOOD < pLEASE CLARIFY THE SAME QUESTION.
If My wife pays Rs 2 Lacs against her bounced chq , can she be out of the case as she only signed on her chq of Rs 2 Lacs.
SAINATH DEVALLA
(Expert) 16 August 2015
U have to ask this question to the complainant?
ANISH KHANNA
(Querist) 16 August 2015
SIR DOES LAW ALLOW IT CAN ONE ACCUSED PAY HIS OR BOUNCED CHEQUE AMOUNT AND CLEAR HIS OR HER LIABILITY .
OR IT IS IN HANDS OF COMPLAINANT
SAINATH DEVALLA
(Expert) 16 August 2015
If UR ready to pay the cheque amount,better go for an out of the court compromise with the complainant and settle the matter.
ANISH KHANNA
(Querist) 16 August 2015
SIR I NEED TO PAY MY WIFE LIABILITY AND GET HER OUT OF THIS CASE . i DONT HAVE TOTAL FUNDS SO THAT I CAN HAVE OUT OF COURT COMPROMISE < I CAN PAY RS 2 lCAS FOR MY WIFE . SHE IS AFRAID GOING TO COURT AGAIN AND AGAIN . pLEASE ADVICE ,
Guest
(Expert) 16 August 2015
Your Query is 8 days old and Now Only you are Telling Some Facts which had wasted every one's Time.Better Discuss the Same with the Complainant Very amicably in a Pleading way and Sort It Out As Already Advised by Senior Expert / Advocate Mr.Sainath Devalla.
ANISH KHANNA
(Querist) 16 August 2015
SORRY FOR WASTING THE TIME SIR THE COMPLAINANT IS ASKING FOR ALL THE PAYMENTS IN ON GO WHICH AS OF NOW I AM NOT IN A POSITION TO GIVE ,
MY WIFE DONT WANT TO ATTEND THE COURT PROCEEDING I WANT TO GET HER OUT OF THESE PROCEEDINGS BY PAYING HER LIABILITY OF HER CHQ ISSUED DOES LAW PERMIT HER TO DO SO.
I WILL FACE THE PROCEEDING FOR MY LIABILITY
Guest
(Expert) 16 August 2015
Then Seek the Assistant of Local Good Senior Advocate and Deposit Rs 2 lakhs and Seek Sufficient Time For the Balance in the Court it Self.Here No Need to Discuss it as Release my Wife etc. Altogether Go for Settlement.Discuss with your Advocate.
Guest
(Expert) 16 August 2015
Welcome Please
SAINATH DEVALLA
(Expert) 16 August 2015
UR wife would be A1 in the complaint,and U as A2, UR wife cannot be given the opportunity of paying her cheque amount and continuing the liability against U.Hence either pay the entire amount or face the court with merits.I hereby conclude my suggestions here.
