lucky bouns (propriter) 04 March 2014
RESPECTED SIR,
MY QUESTION IS THAT IF PARTY 'A' AND PARTY 'B' MAKE A DEAL WITHOUT ANY DOCUMENTATION. AND 'A' GIVES A CHEQUE OF AMOUNT TO 'B'. BUT FEW HOURS LATER THEY AGREED TO CENCAL THE DEAL .BUT 'B ' DENIED FOR CHEQUE RETURN . 'B' SUBMIT THE CHEQUE IN THE BANK WITHOUT ANY INFORMATION. SIR NOW WHAT ACTION CAN BE TAKEN BY 'A' .PLEASE SUGGEST.
Advocate Bhartesh goyal (advocate) 05 March 2014
As per sec 138 of N.I.Act,cheque must be issued against legally enforceable debt or liability,A has not issued the cheque against any debt or liability,cheque hasbeen misused by B so A must lodge a complaint in concern police station in this regard .
Prasun Chandra Das (Banker) 05 March 2014
I beg to differ with Adv Goyal. A legally enforceable debt arises from a legally enforceable agreement/contract. A legally enforceable agreement/contract can also be orally made. So, we cannot rule out first hand that there was no legally enforceable debt just because the contract/agreement was not reduced to writing.
Practically, since sec 139 presumes in favour of holder, "A" will have to prove to the court that there was no legal liability against which the chq was issued. This is a matter of trial on which Adv Goyal is infinitely more qualified than me to comment.
Advocate Bhartesh goyal (advocate) 06 March 2014
Most important ingredient of sec 138 of N.I.Act is cheque must be issued against legally enforceable debt or liability until and unless B does not prove that cheque has been issued aginst the same presumption of sec 138 of N.I.Act can not be drawn.Moreover cheque was issued in connection of deal which has cancelled without any transaction so no quetion to draw presumption of sec 138 of N.I.Act in favour of B.It is clear case of cheating.
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