Negotiable instruments act u/s 138
Mahesh Kumar
(Querist) 24 October 2013
This query is : Resolved
I have filed a case U/s.138 of Negotiable Instruments Act for a claim of an amount.
Facts:
I have supplied material to the Accused Party and the accused party issued four cheques against four seperate Bills with different dates.
Upon Presentation of the Cheques, the Cheques got dishonored reasoning "payment stopped by the drawer". Upon this I have filed FOUR seperate cases against the accused as the Accused issued four seperate cheques.
At the time of Framing of Charges, the Accused said "I have not received any material, hence I stopped the payment"
At the Time I received the Cheque, I have given all the original material receipt notes and the bill.
I wish to know whats the Stand of Accused and My in this cases.
Kindly help me with your views for a better understanding.
V R SHROFF
(Expert) 24 October 2013
Receipt of material/ transport mode and delivery are vital in this case.
Anirudh
(Expert) 24 October 2013
Please indicate the date(s) of your each invoice and the amount of each invoice.
Please also indicate each of the cheque amount and date of cheque.
Please clarify whether you have any duly acknowledged delivery challan for receipt of goods by the buyer.
Whether the purchase orders from the buyer are in writing or oral.
After knowing your answer, appropriate answer can be given to your query.
Mahesh Kumar
(Querist) 24 October 2013
Invoice Date: 9/5/2013 Bill Amt. Rs.15,236/-
Cheque Date: 19/6/2013 Rs.15236.
Invoice Date: 14/5/2013 Bill Amt. Rs.15,116/-
Cheque Date: 25/6/2013 Rs.15116.
Invoice Date: 18/6/2013 Bill Amt. Rs.15,895/-
Cheque Date: 18/8/2013 Rs.15895.
Invoice Date: 18/6/2013 Bill Amt. Rs.15,654/-
Cheque Date: 18/8/2013 Rs.15654.
Cheque is issued upon the receipt of Material and All were post dated.
The Purchase Order is in Oral.
(Note: I have supplied previously also and got the cheques also and were honored - I have those documents but no material receipt note as they take the original material receipt note and issue the cheque. I have a Photocopy of the above material receipts)
DEFENSE ADVOCATE.-firmaction@g
(Expert) 24 October 2013
1} The cheque law has two parts-
ONE is issue of cheque and it is bounced and SECOND- legal liability.
2) So if accused accepts stop payment the first requirement is over.
However you have to prove legal liability otherwise no relief possible.
SUPREME COURT IN A VERY RECENT CASE EVEN CANCELLED CONVICTION CONFIRMED BY HIGH COURT ON FOLLOWING REASONING.
. There was no reliable documentary evidence adduced by the complainant to hold that a sum of Rs.25 lakhs was due to him warranting execution of Exhibit P-1 cheque.
Anirudh
(Expert) 24 October 2013
If the material invoiced in bill dated 9.5.2013 was not supplied, having issued the cheque for Rs. 15,236/-, the buyer would not have issued another cheque on 25.6.2013. He would have rather asked for adjustment of the earlier cheque issued on 19.6.2013. But unfortunately, you say that all the cheques were post dated, meaning thereby that even prior to the supply of the goods, the cheques were given to you. In which case, my contention that the buyer would not have issued the second cheque may not hold water. It is not clear whether you have stated in your complaint that the buyer had issued the post dated cheque.
Further, when you say that you had supplied in the past and the cheques issued against those supplies were duly honoured, it will only strengthen the stand of the buyer. He would take your statements and then will contend that whenever I received the goods in the past I had made payments. This time, since I did not receive the goods, I stopped the payment.
Rajendra K Goyal
(Expert) 24 October 2013
In the court you have to give concrete proofs that buyer received the goods / was liable to pay the amount shown in the cheques.
Mahesh Kumar
(Querist) 24 October 2013
Its always the Business is on Post Dated Cheques after the receipt of the material.
and It has been mentioned in the complaint that the Accused have given a post dated cheque.
There is no advance payment (Meaning: The Buyer does not issue the cheque without receiving the material)
and more over the Cheque and the Bill Amount are same and Date differs..as its given on a credit condition.
He has not given me any advice or letter that this cheque being issued is a payment for advance. And you can see this are not round figure payments... its a bill to bill payment.
Mahesh Kumar
(Querist) 24 October 2013
Does Photocopy of Material Receipt is a valid evidence?
ajay sethi
(Expert) 24 October 2013
where is the original receipt? if it in possession of opposite party issue notice to produce
Mahesh Kumar
(Querist) 24 October 2013
Ajay Sir,
He claims I havent supplied the material at all.
As he took the Original receipt and Issued the Cheques respectively to the bill amts.
ajay sethi
(Expert) 24 October 2013
you must have obtained his acknowledgment on xerox copy of delivery challan along with stamp as evidence of receipt of goods
Rajendra K Goyal
(Expert) 24 October 2013
Burden of proof that the material was supplied lies in complainant / you.
Raj Kumar Makkad
(Expert) 24 October 2013
Well advised by experts so no more to add.
Mahesh Kumar
(Querist) 24 October 2013
But Why did the Accused Issued a Cheque? Isnt that in Question... which is corresponding exactly to my bills.
No Enclosure given by the Accused that the cheques given by him as any kind of Advance?
Well Most of The Businesses are in this format... The Bills and DC are all retained by the Receiver of the Goods and they send the Cheque against the Bill. So No Liablilty unless I present Original Receipt of Goods?
Nadeem Qureshi
(Expert) 25 October 2013
Dear Mahesh
file the photocopy of the receipt & bills, there is many judgements in which the court clearly held that in exceptional case the photocopy can be used as an evidence. the burden of proof lies upon the accused related to issue the cheques. so you complaint case is strong.
Feel Free to Call
DEFENSE ADVOCATE.-firmaction@g
(Expert) 25 October 2013
1) Pl give specific judgements., merely telling that there are many judgements is not enough.
2) Photo copies are secondary evidence and it is not easy to prove them.
3) It is not the accused but complainant has to prove,, the duty of accused is only to rebut it.
See and read carefully what SC has said very rece3ntly.
Quoted by SC in a JUDGEMENT 2012 IN A CEHQUE BOUNCE CASE CANCELLING CONVICTION.
The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt.
ā€¯
This Court, therefore, clearly opined that it is not necessary for the defendant to disprove the existence of consideration by way of direct evidence.
