dEFENCES US 138 OF ni aCT

Can you elaborate the contents of the legal notice received by you from them so that we can draw some conclusions in this forum?

S.138 IS APPLICABLE ONLY TO A LEGALLY ENFORCEABLE DEBT.

They did not disburse any amount..... and also there is no written agmt between the institution and us. Talks were going on and they were saying that they will be disbursing the amount in short period.

Then there is no cause for action, the complaint u/s.138 is not sustainable.

Legal notice says that we agreed to take thgeir services for financial support of Rs. 50 cr. for expandfing our business and fees of the institution was decided as Rs. 4.5 cr. out of which Rs. 2.5 cr q was issued and the same has been dishonoured. while the fact is that they are unable to support us financially for even a penny and there is no written agmt between us for such kind of understanding or availing such services from them.  all these understanding is oral only.

There is always a presumption in S.138 cases, if the cheque was issued for their services, then they have a case.

Logically, they have not supported you financially but they provided services for finding a suitable financier/financial institution. The discretion of the lender is important as far as this party is concerned it has no say in the matter except they acted as commission agents. But what were the terms of the oral agreement?

Actually, the oral understanding was that when they will find a suitable fincier for us whatever amt the financier agrees to disburse they will cut their share of brockerage from that amt and will give us the remaining amt.

IT IS SURPRISE TO BELIEVE THAT A COMPANY WITHOUT ANY WRITTEN  AGREEMENT, HOW CAN THEY ISSUED P.D CHQS.?

HOWEVER WHEN CHEQ IS BOUNCED 138 ATTRACTS, TO PROVE THE MISTAKE/MSICHIEF/COERSION  BURDEN LIES ON THE DEFENCE. PRESSUMTION (139),REBUTTAL IS MAKE THE ACCUSED ACQUITTAL . 

Apart from opinions of the learned advocates Mr Reddy has the raised the real issue why PDC was issued., and hence presumption of liability.

There are always two sides in NI 138 cases. Complainant had cheque and law in his favour for presumtion. However the accused has to face the music of court proceddings and he has the defense that there was no legally enforcable debt / liability and second and most imp defense is procedural mistakes made by the complainant either in notice and adhearing to various time limits.

we have recently won a case of NI 138 on one very minor point which is ignored by most the seasoned advocates . There is a provision in 138 (a) that the cheque should be presented  either within six months of issue or bofore its validity which ever is earlier. Please understand that the law does not provide a blanket validiy of six months. Most advocates presume that since the cheque is otherwise valid for six months hence it can be presented at any time before six months of issue. NO NOT AT ALL. HERE LIES THE EXCEPTION PROVIDED IN N I ACT. if it is proved that the validity of the cheque was earlier than six months  which we proved and hence six months time is not available to the complainant.

Other important way out is to initiate offensive procedding which will defer from case to case and guidance can be available only personally.

Mr.Mansi, from your version, it is clearly made out that the service of the other party is incomplete and hence you are not liable to pay them the cheque amount till their service i.e., procuring loan to you is complete. Otherwise, it amounts to cheating by the other party u/s.420 I.P.C. and also amounts to offence of Extortion under I.P.C. Hence as far as Cheque bounce case is concerned, you have no botheration at all, since you are legally bound to pay only any debt or liability, but in your case, the liability has not arisen since the service is yet to be completed by the other party. In case you opt for taking action against the other party, you may lodge criminal complaint of Cheating and Extortion. Pl take services of a lawyer for doing so. Your complaint against them will be useful to defend your cheque bounce case also.

Mr Rao how for a cheque willingly given can attract cheating or extorsion. It will be other way round as My Reddy has explained above that how and why a PDC WAS given. Can a post dated be taken forcibaly that too in  CRORES.

Something wrong somewhere.

There was certainly greed which was not fuffilled hence crocodile tears.

IN MOST OF THE NI ACT 138 CASES IF U ABLE TO PROVE MISTAKE, MISCHIEF, PRESENT/GIFT, COERSION    FRAUD, STRONG GROUND OF LOVE&AFFECTION IN ISSUING THE CHQ CAN ONLY COME OUT IN TRAIL STAGE.

OTHER WISE WHO HAVE TO ESTABLISH    THE REBUTAL TO PRESUMPTION AS PER 139 NI.