Stop Payment Case -- Need Advise

Thanks for the reply.

Want to know, if you get such notice u/s138, despite of having sufficient cash from a money lender or third party.....than what do you do?

i agree with sreedher

' Stop Payment Instructions ' - will not take a case out of the purview of Section 138, it has elaborated on the reasons why this should be so.

More importantly, it would follow from the judgments affirming this position that the court will give great credence to the presumption that cheques have been issued in discharge of a debt or liability and will not accept any argument to the contrary.

cheques dishonoured for reasons '' payment stopped by drawer '' come under the purview of 138 N. I. Act .....  

U will get the mandatory notice .... if the Drawee so desires ....... and after expiry of the 15 days period ... the Drawee can file case too ......

Yes but threre are good chances to escape conviction in stop payment case than bounced cheque case.

There are many requirments for conviction and same can always be used in favour of accused.

Just to add to it...after issuance of post dated cheque he had collected a cash from us stating that he will return cheque back, but he has not done the same and went ahead by depositing the same with the bank.....which made us to direct our bank for stop payment of the same cheques....Enitre transaction was verbal and there was not a single written agreement between either of the parties....But the party refrain to return cheque back and has send us the notice....what would be the best possible reply...to that notice and how can we get out of this entire as we have already paid him in cash

There are no of escape routes for accused to win if the case is persued from begining.

Well ma dear friends, there is no difference between the dishonour of cheuqe due to insufficiency of funds or payment stopped by drawer, as both the situation entail the penal provision i.e. criminal complaint u/s 138 of NI Act. You did not disclosed as under wot circumstances you issued the Cheques, but as you said that he is a moneylender, then he is required to have valid licence for lending money under the Money Lander's Act. Until and unless he has the Licence, the criminal complaint or suit  is not maintainable. 

Rest you provide the facts of the case, and further opinion may be given.

Thanks

Dear All,

Recently Supreme Court has held that only when there is "insufficiency of funds" or "exceeding limits", the criminal actiion under section 138 of N.I. Act can be taken.  Action u/s 138 N.I. cannot be taken for any other reason like "refer to drawer", "stop payment" etc.

There are various judgements of SC and HC for NI 138 but as a rule the same do not fit in just like a perfect scale. You have to attend the proceedings and demolish the case of the complainant. And when in cross you bring these facts on records then only the citations will be applicable otherwise not.

I have seen in many cases valuable time is lost by the accused in the mistaken belief of various such citations and no timely steps are taken for preprations of cross.

Please note that it is very easy to win case for NI 138 accused  but if timely steps are taken otherwise citations or no citations it will not help.

Those who are dishing out advice which do not match with the realities at actual level.

I will give an example that there is no provision of issue of NBW even if the accused is absent at first stage. Various High court have given judgments still the NBW are being issued as a routine and even the accused are jailed during trial. ANY REPLY FOR THIS DEAR FRIENDS.

Well Mr. Shashi Kumar ji, with no offence can I ask where are you practicing?

Mr. Shashi Kumar ji,

I wud like to answer to your question, it is true that there is no express  provision in Cr.P.C. to issue NBW's, but you can see the attached  judgment of of Supreme Court, wherein the guidelines were framed that as to under what circumstances the trial court can issue NBW's. 

The first instance when this issue came up before Supreme Court, the relevant para be read as under:-

State of U.P. v. Poosu and Anr. MANU/SC/0191/1976 : 1976CriLJ1373 at para 13 page 5, the Court observed:

Whether in the circumstances of the case, the attendance of the accused respondent can be best secured by issuing a bailable warrant or non-bailable warrant, is a matter which rests entirely in the discretion of the court. Although, the discretion is exercised judiciously, it is not possible to computerize and reduce into immutable formulae the diverse considerations on the basis of which this discretion is exercised. Broadly speaking, the court would take into account the various factors such as the nature and seriousness of the offence, the character of the evidence, circumstances peculiar to the accused, possibility of his absconding, larger interest of the public and the State.

However I wud say that, this discussion is not related to the above mentioned query involved herein.Therefore discussion should be confined only upto query involved for discussion.

Thanks 

He doesnt have license, and he issed the notice that he has given cash on friendly loan purpose, still his notice remain valid.....coz the amount has been already paid to him, but he is not returning the cheque back to us...in that case what shall we do and he has already send the notice....