Negotiable instrument act 138
PARESH DESAI
(Querist) 22 March 2014
This query is : Resolved
Sir, I had given cheque to a person was returned with mark of insufficient fund. than i received a notice stating either reply in 15days or to make a payment. i made him a payment through demand draft on 12th day. but he deposited let and received payment on 16th day. after taht he filed a case and still case is on board. i explained it to the court but a case is not dismissed. what i should do. will i be in trouble?
ajay sethi
(Expert) 22 March 2014
how was payment sent to accused ? was it by courier? if you sent it on 12th day and he received it within 15 th day it is not your problem that he deposited the DD late .
you have good case on merits . full payment has been made .
PARESH DESAI
(Querist) 22 March 2014
it was handover to accused personally in good faith on 12th day. bank has issued a letter that dd of full amount is credited to his account on 16th day. date mentioned on dd issued by a banker is of 12th day from receipt of his notice. further guide me.
ajay sethi
(Expert) 22 March 2014
if you handed him on 12th day did you receive any acknow ledgement from him or not ?
PARESH DESAI
(Querist) 22 March 2014
No. as i was not knowing his malafied intentions.
ajay sethi
(Expert) 22 March 2014
in such a case offfence is completed when payment is not received within period of 15 days . you have no evidence that payment made by you on 12th day .
anyhow court will take a lenient view as full payment has been made before filing of complaint under section 138 Ni . may impose nominal fine on you
PARESH DESAI
(Querist) 22 March 2014
should i have any punishment of jail?
PARESH DESAI
(Querist) 22 March 2014
dear sir can u pl. reply?
venkatesh Rao
(Expert) 22 March 2014
File a revision in sessions court against the order of the trial court. File an affidavit explaining everything in detail. The court of revision will consider your prayer.
Anirudh
(Expert) 22 March 2014
Did you bring the information that you paid by DD to the notice of the court in writing, or orally?
PARESH DESAI
(Querist) 22 March 2014
yes. i have given in writing that i have paid dd.
Kumar Doab
(Expert) 22 March 2014
The Bank can also certify on which date the DD was presented for collection and in which bank.
This should resolve your matter.
PARESH DESAI
(Querist) 22 March 2014
Bank has certified that DD presented on 16th day and cleared on 16th day as he has account in same bank
Kumar Doab
(Expert) 22 March 2014
If the DD was submitted on 16th day then it is a matter of common sense that it must have been obtained at least a day before.
You have already taken a stand that DD was handed over on 12th day and maintain it.
The 15th day is over by the close of office hours on 15th day.
If you are not able to handle it on your own then let your lawyer handle it.
Full payment has been collected thru DD on 16th day and has been made.
PARESH DESAI
(Querist) 22 March 2014
15th day was sunday. on 16th day dd was credited to his account. he knowingly deposited it after 15 days.
Kumar Doab
(Expert) 22 March 2014
Since 15th day was Sunday the DD can not be deposited on 15th day.
It is felt that you are perturbed.
Usually if last day of deadline is off day/holiday/closed day the deadline is advanced to next working day.
Present the facts to court thru your lawyer.
PARESH DESAI
(Querist) 22 March 2014
that means i have comply his notice and paid him within 15 days. shall matter will be dismiss and i will be free.
Kumar Doab
(Expert) 22 March 2014
This shall be decided by the court.
The decision of the court of law is pleasure of the court.
Present the facts to court preferably thru your lawyer.
All the Best.
PARESH DESAI
(Querist) 22 March 2014
however fact is in my favour but if court decide in against of me what shall i do.
Kumar Doab
(Expert) 22 March 2014
The experts have already advised.
You are perturbed.
Present the facts to court preferably thru your lawyer and send your lawyer to the court.
Request your lawyer to prepare in advance for all eventualities.
Discuss in person with your lawyer.
PARESH DESAI
(Querist) 22 March 2014
what is meaning of perturbed.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 22 March 2014
It is legal system so there may be delay but no problem.
In fact the complainant should not take any further steps in the case.
Apply in the court for dismissal of case mentioning the SC direction given in
Decided On: 18.05.2007
Appellants: C.C. Alavi Haji
Vs.
Respondent: Palapetty Muhammed and Anr.
You can get its copy form any bar liabrary. However request your advocate to mention in the application before the court that no earlier notice was received and on receipt of court summons within TWELVE DAYS draft was sent.
COURT WILL AGREE AND WILL SURELY TELL THE OTHER SIDE TO WITHDRAW THE CASE.IF NOT COME AGAIN HERE AND WE WILL PROVIDE SIMPLE SOLUTIONS.
ajay sethi
(Expert) 22 March 2014
dont worry you wont go to jail . you have proved that it was your intention to make payment and you have made full payment
Rajendra K Goyal
(Expert) 22 March 2014
Agree with the advise of expert ajay sethi ji.
Biswanath Roy
(Expert) 23 March 2014
Sec.138 N.I. Act cannot send you Jail unless otherwise it is coupled with sec.420 IPC. AS TO YOUR FACTS YOU ARE NOT FALLING U/S.420 IPC. So you need not to be worried for since you paid your debts in full.
PARESH DESAI
(Querist) 24 March 2014
Thank you all. I am oblised.
