ni act 138
Querist :
Anonymous
(Querist) 05 March 2010
This query is : Resolved
A complaint is filed against me under section 138 stating i bought a sofa set from the opposite party and in consideration i gave a cheque.but i gave a cheque for the purpose of a hand loan taken from the company as i am the employee of that company.on behalf of the opposite a person filed a complaint without stating in the complaint that he is the authorised person to file the complaint but only one director of the company gave the authorisation.the OP has not filed any document in support of the purchase of the sofa and i am not having any document of the loan ?What is the maintainability of the petition?
Querist :
Anonymous
(Querist) 05 March 2010
Kindly give the case laws and authority texts in reference if any
Manish Singh
(Expert) 05 March 2010
since the complaint has already been filed,you state all the above said conditions before the judge and the complaint shall accordingly be dismissed.
also, the general assumption against issuing of cheque says that the cehque must have been issued against any debt so witout the complaint was admitted even without furnishing any proof of purchase of sofa set an once you prove that the cheque was issued against the loan as a security, the complaint shall accordingly be quashed.
B K Raghavendra Rao
(Expert) 05 March 2010
It is a legally recoverable debt whether you have purchased a sofa set or had borrowed hand loan from the company. Therefore, if the cheque bounces, a case under 138 NI Act is maintainable. But, however, it has to be seen whether the director who has given authorisation letter to the complainant person is having the power to do so. If he has powers, you have no defence. Otherwise, you may, when your turn comes, cross-examine the complainant to the effect that he had no proper authorisation to file the complaint in which case, the complaint would be dismissed as not maintainable.
Manish Singh
(Expert) 05 March 2010
I dont agree with the opinion of Mr. Rao since firstly section 138 does not include in its ambit security and further several higher courts including the SC have already interpreted the said section keeping aside and out of its ambit the cheques issued in respect of security.
for your ready reference you may refer the case :
Ramkrishna Urban Cooperative Credit Society Ltd. V Shri Rajendra Bhagchand Warma, Mum HC decided on 16.02.2010
Guest
(Expert) 05 March 2010
I do agree with Mr Raghav
B K Raghavendra Rao
(Expert) 05 March 2010
Mr. Manish Singhji, you are confused. I have not spoken anything about security cheques.
Adv ramesh chheda
(Expert) 05 March 2010
c in this case u need to fact the trial and in trial u need to shift burden on the complainant as initial burden is on u due to adverse presumption ag u in cheque bounding matter. u ask complainant to produce bill and other supporting to show that actual transaction has taken place between u and him . i will fail and so u have shifted burden on him and now if he cannt prove his case then u have won
it is a trick of shifting burden in cheque bouncing matter
Sukhija
(Expert) 07 March 2010
I agree with Rao
Manish Singh
(Expert) 09 March 2010
Dear Mr. rao,
you stated that if the cheque bounces, the case under 138 shall be maintainable under both the situation which is legally not tenable. i agree that it is a recoverable amount at any cost but making it criminal under sec 138 needs certain ingredients which is lacking under the situation where a cheque is issued as security.
