Section 138 Ni act
rahul
(Querist) 15 March 2015
This query is : Resolved
My uncle shifted from chattisgarh to maharashtra ,as he comes from other state he had no documents of maharshtra so i live here so he started one business ,he had taken one land on rent and started his business ,as he had no documents for registration of liscence of business he takes licence of land owner and opens bank account as patrnership firm of land owner and mine..he had given mine documents and land owner documents in band and started account but there is no partnership deed in account.but mine signature is autheroised on cheque .. And firm was registered on the name of land owner. Then my uncle started business with this account ..he had taken mine signature on all cheques and letter heads .. And started business after eight months my uncle commited sucide..and with the party he was doing business he had given him cheques of my signature now party had files a case on name of firm and bank account is on the name of mine and that land owner..
Now what to do how can we both come out from this..
The land does not made the rental aggrement with him..
But mu uncle had leaved a sucidal note in the name of party he had written that ...((name of firm) IS FIRM ME JO AAPSE LEN DEN HUA HAI USKI PURI JIMMEDARI MERI HAI ISME AUR KISI KA LENA DENA NAI HAI))
Please help me sirrr how can we both come out from this....
Advocate Kappil Cchandna
(Expert) 16 March 2015
Sir,
You have no legal liability to pay and merely by using your cheque name and all you cannot be made liable .. The party who has to prove the legal liability cannot prove anything against you .....
You have got a good case don't worry ....
Regards
Kapil Chandna Adv 9899011450
Anirudh
(Expert) 16 March 2015
I am sorry, I do not at all agree with Mr. Kapil Chandna's views.
The party who holds the cheques, when gets bounced will send the legal notice.
one has to see what is being alleged in the legal notice. Without this, to conclude that no legal liability, is too premature and over simplistic to say the least.
rahul
(Querist) 16 March 2015
The notice he served is as,
Since long back i purchased item from him on credit of Rs 47 lakh
On behalf of it i had issued 2 cheques one of 10 lakh and one of 15 lakh .one cheque of 10 lakh was bounced at the time of issuance both partners were present and accepted the liability.and isseud another cheque of 15 lakh and asked my client not to present this cheque for this month and issued a letter. (That letter is issued by my uncle because handwriting is of mine uncle and signature is mine).in next month this cheque was also bounced.therefore he issued notice on both of us for rupees 15 lakhs.and after that he writes in notice that we both partners meet with him and requested him not to take legal actions and issued a letter that we had taken item of Rs 47 lak - and will pay Rs 25 lak and 3 lak rupee intrest. Total Rs 28 lak
And issued another cheque of 28lak
Of dated after 6 months(but none of us both neither meet with him nor given a letter with signature to him,
Another person ie land owner has filed the 420 case on the party because his signature is duplicate in the letter , and both the letter is computerised typed not hand written)
So he issued a notice of rupees 28 lak and filed the case on both of us..
Siirr help me please i am a student of engineering and this all things distracts me from studies..
Sunil S Nair
(Expert) 16 March 2015
1] According to your statement how much sum is outstanding clearify.
You will have to take legal help if the supplier files case against you a you both do not have a chance and for the handwriting purpose you will have to state the true facts in WS before court.
Now send a reply notice with help of a local lawyer and stating in it the contents of notice are false.
Keep all documents you have :
1] Purchace Order
2] Shipment receipt
3] Delivery receipt
4] Bank transaction between your firm and the supplier.[ Complete Details ]
5] Octroi Receipt if any paid.
6] Any agreement if any / mail/sms of the supplier will help you to contest the case.
rahul
(Querist) 16 March 2015
According to party outstanding amount is 47 lak but as previously both cheques were bounces my uncle had returned him item of rupees 25 lak and given him 13 lak by cash and 10 lak by cheque..
But not have cash reciept and more detail about the item which is returned to him...
As per us there is no outstanding but he had my blank cheque signed....
So is the case is in our FAVOUR!!!or NOT!!!
rahul
(Querist) 16 March 2015
The cash he had given to him is written on a register in my uncles handwriting...but no cash reciept
Rajendra K Goyal
(Expert) 16 March 2015
You have to defend yourself in the cases on merit. On the face of query it appears that it would not be easy to come out of this mess.
If possible try to have amicable settlements with the holders of the cheques.
rahul
(Querist) 16 March 2015
is this case in my favour???
Advocate Kappil Cchandna
(Expert) 17 March 2015
Sir,
I am telling you again and again.... Its a simple case... No legal liability and merely by issuing a cheque you cannot be made liable ....
Mr Anirudh no matter what the allegations are, but as a matter of trial the party cannot prove the legal Liability.... So cannot recover ...
Its simple common sense ...
Regards
Kapil Chandna Adv 9899011450
Anirudh
(Expert) 17 March 2015
Dear Mr. Kapil Chandna,
I am sorry, the moment the complainant shows that he has a cheque which got bounced, that is enough for the magistrate to take cognizance of the offence. Ultimately what will happen is another thing. But, without even knowing the contents of the legal notice and the reply thereto, to simply say that no legal liability, LET ME REITERATE is too premature and over simplistic to say the least. If I may say so, even bordering on irresponsibility.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 17 March 2015
Mr Kapilchandra it seems you have not handled any cheque bounce case so giving wild directions as told by ANIRUDH.
While many non advocates and so called experts having no legal exposure are giving copy cat solutions but an advocate has more responsibilities. More over when you are giving your mob no and photo.
The recent APEX COURT decision says in 2013 quoting a 2010 citation.
The judgment clearly held that the presumption under Section 139 of the Negotiable Instruments Act, 1881, includes the presumption of the existence at a legally enforceable debt or liability. That presumption is required to be honoured, and if it is not so done, the entire basis of making these provisions will be lost.
Again in 2014 SUPREME COURT has confirmed a 2007 kerala HIGH COURT judgement which says.
“It is evident from the language of Section 138 of the N.I.
Act that the drawer is deemed to have committed the
offence when a cheque issued by him of the variety
contemplated under Section 138 is dishonoured for the
reasons contemplated in the Section. The crucial words are
"is returned by the bank unpaid". When that happens, such
person shall be deemed to have committed the offence.
With the deeming in the body of Section 138, the offence is
already committed or deemed to have been committed. A
careful reading of the body of Section 138 cannot lead to
any other conclusion.
T. Kalaiselvan, Advocate
(Expert) 18 March 2015
From the contents posted by author there appears a prima facie case liable against him for cheque bounce offence. The case has to be challenged on the basis of merits and evidences in your possession.
