Section 138 of n.i.act

Querist : Anonymous (Querist) 04 February 2012 This query is : Resolved
Dear all,
A person issued a cheque discharging his enforceable liability of Rs.2,00,000/-.Subsequently the cheque presented by the payee but dishonoured due to insufficiency of fund. The fact verbally communicated to the drawer and he assured to make a part payment and issue a pdc against balance payment. Thereafter the drawer made part payment against his liability under the cheque but could not take back the original cheque or without issuing fresh cheque on balance amount. As the time limit expired to issue the notice due to the dishonourment of the cheque the payee again depositted the cheque and got it bounced due to insuffiencey of fund and issued demand notice demanding full payment under the cheque and without mentioning the part payment. No reply received from the end of drawer and payee filed case under section 138 of N.I.Act. After receiving the summon accused again communicated and made another part payment and promised to clear the balance amount within next date of the case.So the case may be withdrawn and he also filed a petition to the court to that effect explaining all payment made by him and with an undertaking to clear the same before the next date. Now, the accused did not make payment of balance amount as per undertaking filed by him. Now, the question arises whether filing of the petition will be treated as the accused pleading guilty or due the reason accused made part payment case is liable to be dismissed on the ground that part payment received before filing of the case.
Kindly give your opinion.

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Deepak Nair (Expert) 04 February 2012
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Sailesh Kumar Shah (Expert) 04 February 2012
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