U/s 138 n.i. act
Adv. Mohan Chandra
(Querist) 22 March 2013
This query is : Resolved
Appellant is not pursuing matter u/s 138 for over 8 years but regularly depositing blank cheques in its custody every 2 years. Account closed after the first instance, party has sent notice u/s 138 for subsequent 2 cheques but never pursued the matter beyond that in the court of law, no reply given on behalf of the defendant.
Please guide on what is the legal remedy to this problem.
prabhakar singh
(Expert) 22 March 2013
In whose favor the the reply is sought?
What do you mean by expression "Appellant"?
We call "Appellant" to party of case who looses his case in original court and files appeal in a higher court.
Any cheque can be legally deposited for any number of times with in validity period from the date of the cheque which was only six month and now has been reduced to three months only.
When 8 years have ,no civil suit or criminal complaint case could now be filled.
Adv. Mohan Chandra
(Querist) 22 March 2013
Sorry its Complainant Sir
Complainant bank filed suit by depositing one of the 10 blank cheques taken as security in 2005 decision on the suit is pending for over 8 years.
During the span of 8 years the complainant has deposited fresh blank cheques in its custody with principal and overdue interest on three occasions and have issued demand notice u/s. 138 but not proceeded further.
For e.g. second blank cheque was deposited in 2008, third blank cheque was deposited in 2011 and now the fourth cheque has been deposited in 2013.
Demand Notice u/s 138 was given in 2008 and 2011 but suit was never filed.
During cross c.w. has submitted blank cheques were taken with their Sr. numbers.
This is a peculiar case and never heard something similar, I wanted to know what is the best legal remedy to this.
Devajyoti Barman
(Expert) 23 March 2013
File an application before the high court for quashing on the ground of being delayed a lot.
The case would not be quashed but you would get an order for time bound bound disposal of the case.
Adv. Mohan Chandra
(Querist) 23 March 2013
Thank you Devajyot Ji, Prabhakarji any suggestion from you.
prabhakar singh
(Expert) 23 March 2013
When he states "Complainant bank filed suit by depositing one of the 10 blank cheques taken as security in 2005 decision on the suit is pending for over 8 years."
then how you Mr.Barman advises him to go for a quash when bank has not filled any case under section 138 N.I Act?????????
ajay sethi
(Expert) 23 March 2013
suit is pending on date . you must have executed agreement with the bank on the basis of which loan has been advanced . bank must have taken blank cheques as security . on dishonour of cheque bank has filed suit .
we do not know the averments made in the suit . without going through the suit papers and your written statement it would be diffcult to advise .
you must have negaged a lawyer who is cross examining the witness . go by his advise .
Adv. Mohan Chandra
(Querist) 23 March 2013
Though we have lawyer/s this forum has been like seeking second opinion of experts
on critical issues
Some detailed information us as follows
1. May 2005 Demand Notice received saying bill discounting facility was given to accused
2. June 2005 Process issued
3. July 2005 Affidavit filed by complainant 'presumption' is bill discounting facility was given.
4. Examination of documents requested Advocate to Advocate (Not Allowed)
5. Feb 2006 Partial cross done notice u/s 91 issued to produce bills of exchange and other documents (bills of exchange never produced as on date)
6. Original witness never turned up for further cross
7. Application for Substitution of witness filed by complainant on the ground that CW 1 left service, in July 2006.
8. Not allowed by sitting Magistrate, subsequently allowed by a new Magistrate.
9. Substitution challenged and rejected by upper court.
10. Affidavit filed by cw2 mentioning cw1 transferred (Order for substitution obtained on the ground that CW1 left service)
11. Cross closed once for absence of cw2, order revised from higher court.
11. During cross submitted CW1 was in service as on June 2007 (i.e. one year after filing application for substitution on the ground that CW1 left service)
12.CW2 said notice u/s 91 not received fresh notice given
13 Bill of exchange not submitted, agreement given value 27 lacs, but stamp duty paid for 22 lacs only, statement of accounts for OD Account on record but rejected as evidence for want of certificate under IT Act.
14 certificate submitted with account statement of current account old statement was for OD Account both statement have the same account number and on record.
15 Argument in process at present.
My original query was every alternate year during March ending the complainant bank is depositing one of the blank cheques in its custody, issuing a notice u/s 138 but not pursuing the matter, similarly during this March end they have again deposited a fresh cheque, further action on their part is awaited.
Regards
Sankaranarayanan
(Expert) 23 March 2013
you said you deposited the fresh cheque during this month and it been returned . Are you sent notice to him. what was the reply they made. if you were not got any reply then file a case again for this transaction.
Adv. Mohan Chandra
(Querist) 23 March 2013
It is not me buth the complainant bank is depositing the cheques
ajay sethi
(Expert) 23 March 2013
on one hand you say suit has been filed . now you say that case is before magistrate . civil suit cannot be before magistrate .
in any case original promissory note / bills of exchange has to be produced which hbear the signature of the borrower . it is the foundation of bank case .
if agreement is under stamped in admissible in evidence
to be frank without going through the case papers it wont be possible to advise further .
ajay sethi
(Expert) 23 March 2013
as fara s depsoit of fresh cheques are concerned if bank has after deposit of cheques issued legal notice immediatedly reply to the legal ntoice thrugh your lawyer
Adv. Mohan Chandra
(Querist) 23 March 2013
Ajay Ji, in case of the first cheque suit has been filed by the complainant u/s 138, in case of 2nd & 3rd blank cheque deposited by the bank and demand notice also received but no reply was given by me and no further action taken by them.
Another blank cheque was deposited by them and received by my bank yesterday and action on the part of the bank is awaited.
2 years back in a similar instance when blank cheque was deposited by bank and demand notice received from the bank, in response to the suggestion from this forum, I had approached the local police station to lodge a complaint, but they refused to accept the complaint.
Raj Kumar Makkad
(Expert) 24 March 2013
You need to await further action of the bank and prior to that nothing can be done on your part and the incident of 2 years ago has no relevance as on day.
Adv. Mohan Chandra
(Querist) 24 March 2013
Thank you, Raj Kumarji, Ajay Sethiji, Naraynanji, Prabhkarji, Devajyoti ji
