Non payment of cheque
kumar
(Querist) 29 March 2013
This query is : Resolved
i need guidance, i did job of chartered accountant in private firm of CA for six month. at the month of november 2012 CA told me to leave job because now he does not have that much work. so he give me cheque of last month salary of rs 20000. but he requested to not deposit the cheque for 3 to 4 days since he donot have money to pay. but since nov 2012 to today , he is continuously giving me next month date to deposit cheque. but this time i got fed up and talk him straight forward for payment my salary. then he refused to give me money and told me go for case.
what should i do?
adv. rajeev ( rajoo )
(Expert) 29 March 2013
Cheque is barred by time, because validity of the cheque is only for 3 months.
H.M.Patnaik
(Expert) 29 March 2013
Rajiv is right , no action is possible under the Negotiable instruments Act . However, you can pursue the matter under Civil law for recovery of dues.
Advocate M.Bhadra
(Expert) 29 March 2013
From 1 April 2012, cheques, drafts, pay orders and banker's cheques have valid for only three months to deposit in bank. previously, these instruments are valid for six months from the date of issue.
prabhakar singh
(Expert) 29 March 2013
You have missed the train as he out smarted you.It is surprising to note that despite being a C.A. you were not aware about the presentation time of a cheque?
V R SHROFF
(Expert) 29 March 2013
YOU STATED BEFORE 5 MONTHS :
"sir i am m.com plus llb. i am doing job in company account section. "
KNOWING THE CONSEQUENCES, YOU DELAYED.
kumar
(Querist) 29 March 2013
oh no sir , date on cheque is still blank.
as a CA i was aware of this amendmend. but cheque is without date so that i was waiting.
thanks
kumar
(Querist) 29 March 2013
As a CA i am also aware of law relating to NI Act but lack of practical experience. i am newly qualified ca.
prabhakar singh
(Expert) 31 March 2013
Has he only put his signature on the cheque?
or has filled the amount and payees name on it?
In case he has filled the amount and payees name on it,then putting date by person other than drawer would invalidate it.In fact as per law a cheque can be post dated but can never be undated.And if it can be undated then it is quite funny to lay down a rule that it can not be presented beyond three months from it's date.Do not you think so.
kumar
(Querist) 31 March 2013
judgment of the Division Bench of the Kerala High Court in
Lillykutty v. Lawrance 2003 (2) DCR 610 in the following words:
The mere fact that the payee's name and the amount shown are not in the handwriting of the drawer does not invalidate the cheque.
No law provides in the case of cheques the entire body has to be written by the drawer only. What is material is the signature of the drawer and not the body of the instrument.
Therefore when the drawer has issued the cheque whether the entire body was written by the drawer written beyond the instructions of the drawer, whether the amount is due or not, those and such matters are defenses which drawer has to raise and prove it.
Therefore the mere fact that the payee's name and the amount shown in the cheque are in different handwriting is not a reason for not honouring the cheque by the Bank.
Banks would normally see whether the instrument is that of the drawer and the cheque has been signed by the drawer himself
prabhakar singh
(Expert) 31 March 2013
I agree with what court has said in citation cited.
But i was simply putting that if it is proved that cheque issued was undated then it was no cheque in the eye of law.
i am not saying that one can not put a date and can not present it for collection.
i am saying that if it is done the difference of writing would go proved if writers of body of cheque and date are different,then merely proving a fact by the drawer that cheque issued was undated hence it was not promise to pay on a date or with in three months from that date,hence no offence is attracted.
i am talking of cares one should take doing such things as payee or holder in due course of the cheque
kumar
(Querist) 31 March 2013
sir the judgement of the case mention above
talking about validity of cheque. even its whole content fill by drawee.
and if you want to see it with commonsense
then in my opinion Name and signature on cheque is very crucial act must be done by drawer. if drawer make his signature then its like a power of attorney in favour of drawee. but yes other possibility which can be used by both parties are everywhere.
Guest
(Expert) 31 March 2013
Mr. Kumar,
Your logic on the face of the citation is correct, but that is one side of the picture. Are you sure that your CA would not have issued subsequent cheques with dates prior to three months and also he would not have reported loss of the cheque of your possesion to the bank or the police?
So, better check these positions first before talking about any legal action by putting date and getting the cheque bounced. If you are not careful about these things, your CA would be able even to prove that you had stolem his cheque while you were in service with him.
kumar
(Querist) 31 March 2013
Sir, in the case of allegation of stolen. then i have series of five cheques before last month of same salary. and appointment letter,resignation letter with six month experience cerificate.
if i stolen the cheque then where is the payment of my last month salary.
if other party issue subsequent cheques then what is the problem?. is there any rule to issue cheque in sequence?
The Bombay High Court's Aurangabad bench has ruled that even stop payment of cheque could be punishable under Section 138 of the Negotiable Instruments Act, 1881.
"If due to stopping of payment a cheque is dishonoured, that case is also covered under Section 138 of the Negotiable Instruments Act, if other requirements of that Section are complied with. This is settled position of law," Justice TV Nalawade observed while citing a Supreme Court verdict.
kumar
(Querist) 31 March 2013
he gives me a cheque undated.and now he denied my payment .if i fill up date for my legitimate claim. then it cannot be wrong. even i can myself disclosed that fact in court. i donot think so any need to hide this fact. he is playing with instrument.
prabhakar singh
(Expert) 31 March 2013
We understand your grievances.it is not wise
for you to discuss all things on an open portal which your opponent may also read even if you have concealed or disguised facts stated can lead him to conclude it his case under discussion.
The purpose here is not of arguing any case.
The purpose is to have a guidance and cares
one should take about while enforcing his rights in court.
Citations come and go and even vary and are more dependent on facts of a particular case.
Just proceed now for action without any more discussion.
Guest
(Expert) 31 March 2013
Mr. Kumar,
Don't get offended. I merely cautioned you to be prepared for that eventuality also. Did you earlier intimate that you had series of five cheques before last month of same salary. By a brief description of your case, with piecemeal information in installments that you provide through your subsequent posts, none of the members can get the whole picture of the background of the case and circumstances under which the cheque was given to you and with what intentions behind that.
I wonder, if you are a CA, why you did not get the check completed from your employer? You could even have got a post-dated cheque. You have also not mentioned whether the rest of the cheque other than date of cheque was also blank or filled in by the handwriting of your CA.
The most wondering thing is that being a CA, when you knew that the validity of the cheque was three months and the amount was due to you, what made you to wait for several months by not presenting the cheque to the bank?
A question arises, was your CA employer so poor that he would not have afforded to pay you a sum of just Rs.20,000 and would also not have put any cheque in to his account for everal months?
I do not intend to discourage you to claim your dues from your employer. It is not only a cheque through which you can nail him there are several other service laws also by implication of which you can compel him to pay your dues. So, contact some local lawyer, show him your service documents, along with the cheque, issue a legal notice to your CA, get your case prepared for court of law by doing spade work for making your case fool proof to claim your dues with costs.
Please be sure, any casual query with piecemeal information that you provide in installments won't provide you any appropriate solution.
kumar
(Querist) 31 March 2013
sir, i am not get offended. please never thing so. i was just trying to explain my view.
prabhakar sir you are also right. discuss all fact here is impossible.
Dhingra sir, i take cheque on good faith and courtesy of relationship. my ca is not poor. its just a matter of ego which arise in little bit argument. and i am not hurry in legal battle because i will try to calm down him first after all he is my senior.
kumar
(Querist) 31 March 2013
thanks to all of you to provide me good suggestion and guidance. all of you are also my senior as i am also a student of l.l.b.
thanks..
prabhakar singh
(Expert) 31 March 2013
Dear Kumar!
It is in fitness of your case that you understand me "also right."I told you things vary,circumstances vary,so also the judgments.In some circumstances filling of a blank signed cheque may attract offence of cheating(420 I.P.C)I do not mean in your case.I just put it to vary the decision you are banking upon.
I would like to reiterate and make it clear again and again that placing of decisions do not always favour a party unless the facts and circumstances
of the reported decisions and the principles of
law involved are identical with the facts and circumstances of the case pending consideration before the Court.
Guest
(Expert) 31 March 2013
No further comments, except that you can handle the case yourself depending upon the facts available with you and merits of the case.
Vijyant Nigam (09807349001)
(Expert) 31 March 2013
the case is good but one is not interested to let it good.
simply following the rules of NI Act will be good in this case.
put a date, get it bounce, send a legal notice within time, file a complaint case within time, file evidence and let the summon be issued against the accused...
kumar
(Querist) 02 April 2013
thanks once again. i will definitely take care of your suggestion. the cheque is only undated . all other think like name, amount, account payee lines, and signature are of employer in his own handwriting.
Devajyoti Barman
(Expert) 02 April 2013
All have rightly advised, do as advised above.
prabhakar singh
(Expert) 02 April 2013
The food gets burn by over cooking.am i not stating as fact???????????????????????????
