• Section 138 - Negotiable Instrument act

I have taken a cash loan of Rs. 10 lakhs to be returned after six month at interest. As a security I gave a Post dated cheque of Rs. 10Lakhs. After the date of issue of cheque, the income tax authorities blocked my account for recovery of huge amount. Thus if i had deposited the amount equivalent to the cheque the bank would have transferred the said amount to the Income tax authority. In no case I had options honour this cheque. 
Do I have merit in my case. Kindly sight supreme court judgement if any available.
Asked 7 years ago in Criminal Law
Religion: Hindu

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13 Answers

1)did you issue any receipt for cash loan ?

 

2) any agreement signed by you ?

 

3) any correspondence exchanged with the lender? 

 

4) if no receipt issued nor have you signed any agreement nor admitted your liability there is no evidence on record that you have borrowed Rs 10 lakhs as cash loan 

Ajay Sethi
Advocate, Mumbai
99971 Answers
8159 Consultations

Let the complainant issue legal notice and file complaint in the court.  On receipt of summon from the court, present in the court on the first hearing and make the payment.  It is settled law that in case accused  makes the payment on the first date of hearing, complainant cannot claim interest and litigation charges.  Refer judgement dt. 5.10.17 of Hon'ble SC in Meters and Instruments.

Dalip Singh
Advocate, New Delhi
1096 Answers
36 Consultations

You can take defence that account was blocked by Income tax deoardepar but on date of presentation if you could have deposited amount in that case your defence would not hold good in the law.

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

Dear Client,

It was upto you to make payment in cash when your account was under scanner of IT. And above attachment of bank account dose not comes under ground of dishonor of cheque.

Well, attachment due to your misdeeds, you cannot escape the liability under provisions of section 138 of N. I. Act, but since you have deposited the amount which also retained by I T authority, you are exonerate from liability u/s 138 of the act.

 

Yogendra Singh Rajawat
Advocate, Jaipur
23085 Answers
31 Consultations

When you get the notice about dishonor of the cheque, if you pay the amount as per the notice then no cheque bounce case would be made out.

Mohammed Mujeeb
Advocate, Hyderabad
19371 Answers
32 Consultations

Does the complaint contain an averment regarding promissory note signed by you 

 

if not complainant would find it difficult to make out a case that there is debt due and payable 

Ajay Sethi
Advocate, Mumbai
99971 Answers
8159 Consultations

Yes if you had deposited the amount then it could have supoorted your case. Further yes he can produce the evidence at the later statge with the leave of the court.

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

You need to face the trial. The complainant needs to prove that case beyond reasonable doubt and you need to rebut the presumptions. 

Prashant Nayak
Advocate, Mumbai
34657 Answers
249 Consultations

You do have merit in the case, you can present the situation before the court and may telll the court that you are making the payment to the complainant by other means 

Anilesh Tewari
Advocate, New Delhi
18103 Answers
377 Consultations

You do have a strong defense, if you are ready to settle the amount at this stage 

Anilesh Tewari
Advocate, New Delhi
18103 Answers
377 Consultations

@shubham  Let the cheque bounced n proceedings 138  NI act started, then make the payment in the court.  No need to deposit the money in your account.  Or alternatively make the payment in cash to the party on taking back the cheque.

 

Dalip Singh
Advocate, New Delhi
1096 Answers
36 Consultations

There is no merit in your case, because you never made any attempt to settle this amount by a different mode or bank.

Your reason that the IT may take away the amount from bank account is not justified, the income tax department nor the bank can take the amount from your bank account without your consent or without any court order on this

Even now you have chance to settle the amount and get out of the case, hence utilise the opportunity now or you will never get  such opportunities.

 

T Kalaiselvan
Advocate, Vellore
90173 Answers
2505 Consultations

I had signed a promissory note on my letterhead having a revenue stamp. but incidentally the complainant has not made a part of this promissory note as an exhibit. As per my understanding he doesn't have right to subsequently produce the same as evidence. 

If the complainant has not pleaded about the existence of the promissory note then he cannot produce the same as an evidence at a later stage.






Do you mean to say that if had deposited the amount on or before due date,my defense would have been stronger.

If you were having money with you then you could have settled the amount through other bank or DD also whereas you are now giving lame excuses hence your case may not be maintainable.

T Kalaiselvan
Advocate, Vellore
90173 Answers
2505 Consultations

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