• Relating to Section 138 of negotiable instrument act, Cheque bounce case.

I took the agency of new paper advertisement . I gave them a blank unsigned cheque and bank guarantee of 25000.00 as a security while taking agency. New paper advertisement agency team signed my cheque and wrote amount of 93000.00 in it, placed it in bank. The cheque got bounce on 31.01.2013 and new paper advertisement agency registered a case of cheque bounce under section 138 against me also they recalled bank guarantee of 25000.00 on 14.03.2013 leading to the downfall in outstanding principle in cheque bounce case.
In trail court on hearing, I asked new paper advertisement agency to show their transaction with me which shows I owe an outstanding of 93000.00 liability which they reflected in the cheque. They failed to show that outstanding as I knew there was nothing like this. I even told court as this was not my sign. 
I wish to seek guidance from professional to understand as to what to do in this case. Want to know is this section 138 (Negotiable Instrument Act) case file is valid or not as they failed to justify the liability and also they recalled the Bank Guarantee which led to change in principle amount on which Cheque bounced case is filled. . Is there any earlier citation from court for similar reference case. I wish to seek guidance based citation of any court as what should I further do in this case.
Asked 4 years ago in Criminal Law
Religion: Other

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17 Answers

1)if cheque has not been signed by you you should make an application to court that it be referred to forensic lab for its opinion whether cheque has been signed by you or not

2) you can examine handwriting expert in your defence

3)if there is no debt due and payable court would not convict you of offence under section 138 NI

Ajay Sethi
Advocate, Mumbai
87976 Answers
6207 Consultations

5.0 on 5.0

Sir challenge the signature of the cheque and pray before court for verification from the forensic handwriting experts if in the FSl report it come cheque is not signed by you then 138 won't survive further you can file a case of forgery against the said company.

Further since there is no debt company owe to you and same is not established before court then no convection under 138.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

The ledger account of company and the accounts can be verified in court if the records are tempered further file an application for dismissal of the complaint on ground that no authorised signatory has signed and verified the complaint though a resolution of company board signed by board of directors is valid document for filing complaint a a company law board registration is not required.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Case is not maintainable in absence of any liability.

Abhishek Bhatnagar
Advocate, Lucknow
16 Answers

Not rated

WHEN CHEQUE IS NOT SIGNED BY YOU, NO CASE IS MAINTAINABLE AGAINST YOU.

Konda Srinivas
Advocate, Hyderabad
211 Answers
2 Consultations

Not rated

Hello,

1) The complainant ought to prove legally enforceable liability against the accused to succeed in a cheque return case . If the agency is unable to prove this they will lose the case. Besides their recalling the bank guarantee after the case was filed and the amount getting scaled down make it not a fit case under 138 of NI Act.

2) Much depends on how the evidence is lead and cross examination and the documents before the court. Supreme Court of India

Rangappa vs Sri Mohan on 7 May, 2010. This citation can be quoted to substantiate the non existence of legally enforceable debt especially as you are disputing your signature and the the agency has no other proof.

S J Mathew
Advocate, Mumbai
3387 Answers
175 Consultations

5.0 on 5.0

1. if you issued a blank cheque and the holder entered the amount and date without your consent, then even if there is any existing liability on your part, such a cheque altered without your consent, cannot be enforced u/s 87 of Negotiable Instruments Act. The cheque so altered will be rendered invalid

2. complaint based on blank cheque issued towards security when no debt or liability exists on your part, is not maintainable

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

Yes they need to prove the legal liability. They enjoy some presumptions of law u/s 118 and 139 of the said Act. But the said presumptions can be rebutted by your cross examination and evidence on record. So contest the trial and you may get acquittal.

Prashant Nayak
Advocate, Mumbai
27291 Answers
88 Consultations

4.4 on 5.0

you should file complaint before magistrate against advertisement agency and its officers in charge of day to day management of cheating , forgery , criminal breach of trust

2) enclose copy of handwriting expert opinion that your signatures have been forged

Ajay Sethi
Advocate, Mumbai
87976 Answers
6207 Consultations

5.0 on 5.0

there is no bar for inking bank guarantee during pend ency of complaint filed against you under section 138 NI

if you have denied your liability then burden is upon complainant to prove that there is debt due and payable by you

Ajay Sethi
Advocate, Mumbai
87976 Answers
6207 Consultations

5.0 on 5.0

1. why was the bank guarantee invoked by the agency in the first place?

2. in absence of any stay of court not to invoke the bank guarantee, the agency can invoke the same

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

Sir there is no such stay or bar on revoking the bank guarantee.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Dear Sir,

Such minute issues may not considered by Lower Courts. You ought to have approach High Court for quashing the entire criminal proceeding on the basis of tampering and fabrication of records and that no consideration and that it did not bear your signature. At this stage also you may raise such questions before Trial Court by filing a application to stop further proceedings and if rejected challenge such order before High Court.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

What is the present status of your case.

When there is no legally liable debt and has been proved before court, the case is liable to be dismissed.

There are plenty of judgements supporting your situation.

You can ask your lawyer to procure them.

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

To your subsequent question, it is a matter of trial.

You prove the tampering of records on the basis of the reliable evidence from side and also produce evidence to disprove their claim.

You can give instructions to your lawyer suitably

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

There is no legal infirmity in availing bank guarantee during pendency of a criminal case until there's no order of restrictions from any court of law

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

You need to bring it on record through cross examination or through examination of witness.

Prashant Nayak
Advocate, Mumbai
27291 Answers
88 Consultations

4.4 on 5.0

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