Sec 138 nia
P.C. Joshi
(Querist) 12 May 2013
This query is : Resolved
Dear Friends,
I have seen an agreement between a company and its Consignee Agent wherein under security deposit clause there are tqo sub clause No.1 the Consignee Agent(CA) shall pay a refundable security deposit of a fixed amount and Sub clause no. 2 states that the CA will give 5 Nos blank undated cheques duly signed by him which will be good for recovery of any outstanding money which CA owes to the Company and Company can deposit those 5 Nos of cheque anytime to recover the o/s.
My query is that in the series of judgements of High COurts & Supreme Court, the sec. 138 of of NIA does not convict the cases of dishnour of security cheque.
In the above backdrop my query is :
Is it lawful for a company to incorporate such a clause in the Consignee Agent's Agreement and what is the legal position and a copy of such agreement was exihibited alongwith 138 complaint does it not weaken the case of the complainant.
Valued suggestions from members are solicited.
Thanks & regards
P.C. Joshi
Anirudh
(Expert) 13 May 2013
Anybody can incorporate any condition in the agreements. At that stage, except in legally prohibited matters, nothing will be considered lawful or unlawful.
But, when trying to claim any advantage / benefit or to invoke the provisions of such an agreement, if the law does not support then in spite of such a term present in the agreement, it would be of no use.
What would be the crux of the issue in the matter is, the blank cheques are to be used in case of "any outstanding money which CA owes to the Company". Whether the CA owes to the Company any outstanding or not is to be acknowledged/admitted by the CA. Without his admission, any amount of blank cheque has no meaning.
Therefore, the matter will come a full circle and stop at the very stage where it began, that the cheque was issue in discharge of admitted debt/liability.
While by getting a cheque without any such specific clause in the agreement, the complainant can get the benefit of presumption u/s. 139 that the cheque was issued in discharge of the liability, the insertion of the clause will certainly not help the complainant. Rather it will strengthen the hands of the accused.
