Instrument act sec 138
Parveen Goyal
(Querist) 01 March 2013
This query is : Resolved
Dear Sir
I was working with a co as distributor through franchisee/C&F. I have issued blank cheques as security purpose and taken receiving on my letterhead from co's employee in this it is clearly written that these chese cheques will not be used or presented in bank in any how without my written permission. the said employee is not more working with co or franchisee.
franchisee dispatched some material in jan-2012 to me without any order which was delivered to me at 10:30 PM. I took delivery of the goods on very much request of franchisee and paid cash to his representative. receiving for goods taken was given along with writing Cash Paid on bill copy. in jan-12 another lot of goods was again delevired to me without order and again same procedure was adopted as cash payment was given and receiving was given on bill copy by writing cash paid. Some time in previous also it was in practice that co's or franchisee employees took cash from me against delivered material. there is no case in which franchisee had given material on credit to me.
In feb-12 franchisee used security cheque by presenting it in bank. but because I have already given instructions to my bank for non payment cheque bounced with comment payment stopped by owner. in March or april-12 2nd cheque was also used and same result.
now he had filed the case against me in sec 138. I have no balance amount to pay in account to him instead I have to take payment from him regarding different claims pending. even i have to take some balance amount from direct co's account also. In previous he sent me a balance confermation report according to his books to me and after reconsilation it with my account books I have written objection on it with the difference in balance amount on it and gave account statement to him and there was no objection received on this from him. Please suggest what will happen and what to do.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 01 March 2013
NI 138 case is legal tragedy since purely financial transactions have been given criminal nature.
However if you contest properly from day one it is simple and sure to win the case since complainant make many mistakes in over confidence in issue of notice and framing of pleadings.
ajay sethi
(Expert) 01 March 2013
you have stated that I have issued blank cheques as security purpose and taken receiving on my letterhead from co's employee in this it is clearly written that these chese cheques will not be used or presented in bank in any how without my written permission
blank cheque is no cheque . details have been filled in by the complainant without your authroisation . you have a good defence . further there is a dispute as to amount payable as reflected in staement of account . fight case on merits
Sudhir Kumar, Advocate
(Expert) 05 March 2013
the holder is free to fill details left blank by drawer. But if no amount was due from your side the action u/s 138 will not succeed.
Parveen Goyal
(Querist) 06 March 2013
Thanks to all for your kind expert.
