Another 138 ni conviction

You are not answering my question.

If we forget for time being that there was no outstanding liability on the date of issue of cheque.

But was there outstanding liability on 180 th day, when the cheque was represented ?

My question is has ICICI Bank taken money which NEVER was due to them ?

Once this aspect is understood, I can suggest better appeal grounds.

Dear Sir,

On the 180 the day they are saying there is liability in their notice which we replied they showed some liability to the affect of 22 Lacs or so.

I got your point.

1) the next two things are 1) the agreement is with a sole proprietorship dealership with HPCL in 2005 when my father was alive. In 2006 decemebr he passed away and after 3 months a new dealership agreement was signed with HPCL under the same name with my mother as the proprietor.

2) HPCL and ICICI used the signed agreement but they failed to renew the agreement with my mother. There is no loan agreement with my mother on which these transactions were based. the same was also intimated to them the same way we intimated SBI in another loan and SBI renewed the agreement wheras ICICI faile dot do so.

I think i have explaiend as much on this case.

Regards

See Mr Kumar, I can understand your anxiety, but you must analyse the situation step by step, unless and untill you complete one defense, you should not jump to second defense.

The accused statement you submitted has only one thing nicely written, the complainant version !! Your defense is absolutely vague despite mention of so many citations.

Although there seems to be more than what you are presenting but to assist you, please note down>>

1. One cannot be convicted if the cheque amount demanded is more than liability..

2. One cannot be convicted if the cheque was drawn 6 months prior to presentation, if not PDC.

3. Subsequent release of payment is a valid defense ground.

4. The liability of a prop X, cannot be fixed to a different person. A prop firm by nature gets dismissed on expiry of prop, it can only be continued / mandated as long as prop is alive.

Find out at your level, and let me know the exact liability amount (truthful) at the time of final deposite of the cheque. if this liability is less than cheque amount and the Bank has demanded full amount, then you would succeed in appeal.

Respected sir,

with regards,

the followoing para of following citation may be helpful in reaching the decision what is wrong and what is right:

19. Just such a contention has been negatived by this Court has, in the case of Modi Cements Ltd. v. Kuchil Kumar Nandi reported in MANU/SC/0171/1998. It has been that even though the cheque is dishonoured by reason of stop payment instruction an offence under Section 138 could still be made out. It is held that the presumption under Section 139 is attracted in such a case also. The authority shows that even when the cheque is dishonoured by reason of stop payment instruction by virtue of Section 139 the Court has to presume that the cheque was received by the holder for the discharge in (SIC) or in part, of any debt or liability. Of course this a rebuttable presumption. The accused can thus show that the "stop payment" instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there was sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment oat the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under Section 138 would not be made out. The important thing is that the burden so proving would be on the accused. Thus a Court cannot quash a complaint on this ground.

MANU/SC/0728/2001

Equivalent Citation: AIR2002SC182, 2002CriLJ266, JT2001(9)SC563, 2001(8)SCALE191, (2002)1SCC234, 2002(1)ALD(Cri)585,2002(1)ALT(Cri)230,2002(1)AWC80(SC),IV(2005)BC59(SC),2002(1)BomCR218,[2002]108CompCas48(SC),(2002)1CompLJ58(SC),2002(1)Crimes156(SC),RLW2002(1)SC116,[2002]39SCL270(SC),2002(4)WLN721

IN THE SUPREME COURT OF INDIA

Decided On: 19.11.2001

Appellants: M.M.T.C. Ltd. and Anr.
vs.
Respondent: Medchl Chemicals & Pharma (P) Ltd. and Anr.

Hon'ble Judges:
K.T. Thomas and S.N. Variava, JJ.

Respected sir,

with regards,

the followoing para of following citation may be helpful in reaching the decision what is wrong and what is right:

19. Just such a contention has been negatived by this Court has, in the case of Modi Cements Ltd. v. Kuchil Kumar Nandi reported in MANU/SC/0171/1998. It has been that even though the cheque is dishonoured by reason of stop payment instruction an offence under Section 138 could still be made out. It is held that the presumption under Section 139 is attracted in such a case also. The authority shows that even when the cheque is dishonoured by reason of stop payment instruction by virtue of Section 139 the Court has to presume that the cheque was received by the holder for the discharge in (SIC) or in part, of any debt or liability. Of course this a rebuttable presumption. The accused can thus show that the "stop payment" instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there was sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment oat the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under Section 138 would not be made out. The important thing is that the burden so proving would be on the accused. Thus a Court cannot quash a complaint on this ground.

MANU/SC/0728/2001

Equivalent Citation: AIR2002SC182, 2002CriLJ266, JT2001(9)SC563, 2001(8)SCALE191, (2002)1SCC234, 2002(1)ALD(Cri)585,2002(1)ALT(Cri)230,2002(1)AWC80(SC),IV(2005)BC59(SC),2002(1)BomCR218,[2002]108CompCas48(SC),(2002)1CompLJ58(SC),2002(1)Crimes156(SC),RLW2002(1)SC116,[2002]39SCL270(SC),2002(4)WLN721

IN THE SUPREME COURT OF INDIA

Decided On: 19.11.2001

Appellants: M.M.T.C. Ltd. and Anr.
vs.
Respondent: Medchl Chemicals & Pharma (P) Ltd. and Anr.

Hon'ble Judges:
K.T. Thomas and S.N. Variava, JJ.