Sec 138 of n i act
Amar Jadhav
(Querist) 09 February 2013
This query is : Resolved
Sir,
pls guide in my case the brief fact of case are as follow:
Accused had issued cheque to complainant but due to breach of contract accused gave instruction to bank to stop the payment of said cheque accordingly cheque was returned with remark stop payment and that time balance was sufficient in the account of accused. the Accused did not withdraw his instruction of stop payment. The said cheque was presented again by complainant after two months and now it was returned by bank with remark Insufficient funds.
i had called bank manager as defence witness. In deposition of bank manager he had admitted that there was sufficient funds in account, there is stop payment instruction which is not withdrawn so first memo with remark stop payment was issued but second time i.e. after 2 months as there was no sufficient fund in account of accused the cheque was returned with remark insufficient fund. And bank can do so as there is rule regarding the same.
M query is once stop payment instruction is given and it is duly followed by bank then without withdrawing the said instruction can bank after period of two months return the cheque with another reason i.e. insufficient fund?
According to me once stop payment instructions are given in respect of particular cheque and it is followed by bank then it is not necessary for me to maintain the balance for the same/
How the bank can accept the said cheque and dishonour it with another reason for not mainting balance in the account?
Pls guide me in above said situation of my case. It is listed for final argument. Whether I had made mistake by calling bank witness who deposed against me or whether it is bank negligence or mistake?
What action can be taken against bank/
Pls reply
ajay sethi
(Expert) 09 February 2013
bank is bound to follow instructions of stop payment issued by customer . but the fact is bank has returned cheque with reasons funds insufficent . hence complaint would be maintanable under 138 NI .
you have stated that there was breach of contract byy complainant . you have to fight your case on ground that there was no debt due and payable
Amar Jadhav
(Querist) 09 February 2013
Sir what about bank service because of its second memo only the case u/s 138 is instituted so does it not amount to negligence or mistake
Nadeem Qureshi
(Expert) 09 February 2013
Dear Amar
if your concern is related to only bank, it is comes under the negligence but due to this reason you can not take evidence that you are not coming u/s 138 of Ni Act's offence, Stop Payment is also covered under section 138 of NI Act.
You can send a legal notice to bank for negligence and demand compensation from bank after read all the terms and condition of the bank policy and RBI guidelines.
Feel Free to Call
Amar Jadhav
(Querist) 09 February 2013
Pls anybody can give RBI Rules and guidelines in respect of cheque return
Sudhir Kumar, Advocate
(Expert) 10 February 2013
you are saying that there was breach of contract.
Whether the amount ceased to be due.
V R SHROFF
(Expert) 10 February 2013
"Stop Payment is also covered under section 138 of NI Act." is important point submitted by Nadeem.
So in any case 'stop payment' or 'insufficient fund' is one and the same thing. Bank services are immaterial here.
If you issued notice that breach of contract , you are not liable to pay, and demanded to return the said Cheque,your defence would be 100% .
Now you have to prove "no Liability" and "no consent" to deposit cheque.Stop pmt will add to your defence.
