under 138 of negociable act
Sanjay
(Querist) 22 September 2008
This query is : Resolved
I had purchased a car in april2008. and issued two cheque for the same amount. but car was not transfered in my name.
Later on my both the cheques were dis houour due to insufficient funds.
In july 2008 the original seller had taken the material back. with out giving me my cheque back.
Now he is forcing me to pay the said amount or a legal actions.
Now how law can protect me when knowing all real conditions if selle take back his meterial.
As on date neighter car or cheques are with me.
No notice is being till date. i.e.20/08/2008
Please suggest.
Sanjay
VASANTH D JAGANATH
(Expert) 22 September 2008
section 138 of the negotiable instrument act, 138 deals with dishonour of cheque, according to this provision where cheque has been drawn for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any "debt or other liability".
in your case the other person has to prove that the cheque issued by you and dishonoured against "debt or other liability".
moreover within thirty days from the date of receipt of information that cheque has been dishonoured he has to issue a notice for payment of such "debt or other liability"
As there is not existence of "debt or other liability" liablity cannot be imposed under this section.
J K Agrawal
(Expert) 22 September 2008
Just give him a notice that the cheques are without consideration and hence he should not submit the cheque for realization and should return back the same. A civil suit for declaration as such can be filed.
ARVIND JAIN
(Expert) 22 September 2008
138 NOT APPLICABLE.
Sanjay
(Querist) 22 September 2008
Thanks for unvalued openion given to me.
In my case at the time of contract we both had signed an sale agreement anainst that agreement the two cheque was issued.
The cheque was return one in April and second was in May.
On July 07 he aked me to give keys back i will try to sell some other party.
I hadned over the keys but all of sudden I hot an email stating to pay the entire amount or he will take legal actions as deemed fit.
I had replyed that once the key had taken back its means the contract we made bacomes nullefied.
K.C.Suresh
(Expert) 22 September 2008
S.138 is not fit in yopur case. You said the cheque was returned on April and May. what you realy mean by that. If the cheque is returned what action can be taken under the NI Act. Pl. Clarify
G. ARAVINTHAN
(Expert) 22 September 2008
Section 138 of Negotiable Instruments Act not applicable in your case.
sanjay kumar patibandla
(Expert) 23 September 2008
First you have to look documents between you and him. Is their any agreement between you and him?
He has to prove Legal Enforceable Debt.
Same time your duty is to establish your contention, which is highly difficult.
- Presumption that cheque was drawn for discharge of liability of drawer is presumption of law which is ought to be raised by Court in every case. Burden of proving that there was no debt or liability was on accused. The presumption has to be rebutted by proof and not by a bare explanation which is merely plausible.
Act gently and consult your lawyer.
