• Technical point of section 138

Sir, a person has issued me three cheques worth 2+2.8+2.8 = 7.6 lakhs, and they were dishonored due to 'payment stopped by him'. he has admitted in his reply notice to having issued cheques to me for my outstanding dues, however he falsely mentioned the liability to be 4.5 lakhs. If his story is taken as true, then 
1. since the liability is 4.5 lakhs and the total value of three cheques is 7.6 lakhs, will he get acquittal taking all three cheques together into consideration OR
2. since no individual cheque is more than the liability, will he get conviction as dishonoring of each cheque attracts the section, each cheque being a separate cause of action.

please cite relevant clauses of relevant sections. 
what exactly section 138 says in this scenario?
Asked 9 months ago in Criminal Law from Hyderabad, Telangana
Religion: Other

1. Partial admission is not enough to make a parson acquitted fully.

2. So on the basis of the court fasten him with the criminal  liability while for rest pf the money it would depend on proof of the allegations.

3. The amount admitted by him need not be shown to be sought to be paid through a single cheque. So several cheques for total 7.6 lakhs is perfectly alright as far as merit of the case is concerned.

Devajyoti Barman
Advocate, Kolkata
17816 Answers
253 Consultations

5.0 on 5.0

If only Rs 4.5 lakhs was payable by accused and not Rs 7.60 lakhs as mentioned by you accused would  be acquitted in complaint filed by you under section 138 NI 

Ajay Sethi
Advocate, Mumbai
66996 Answers
4045 Consultations

5.0 on 5.0

1. See onus is on you to give proof of debt and further he won't be acquitted if you give proof of same . 

2. See you can individually file on each cheque giving proof of debt further his reply of 4.5 is not proof you can contest same and can demand for the cheque amount.

Section 138 says that since you have instrument that is cheque is issued and debt is there then in that case he shall be prosecuted under offence of 138 NI act and fined.

Shubham Jhajharia
Advocate, Ahmedabad
19365 Answers
76 Consultations

5.0 on 5.0

No there is no possibility of getting acquittal of that person who issued cheques taking all three cheques together in to consideration. Once he has admitted the liability fully or partly he has to prove consequently. Issuance of cheques are  important. Burden lies on him to show how the cheques are came in to your possession and he has to prove if payment of cheque amount paid under proper acknowledgement.No dought  that the cheque return cases purely basing on technicalities. But in your case your the holder in due course of said three cheques and said three cheques it self establish the quantum of amount due by that person to you. The oral submissions and bare pleas taken by him in his reply doesn't take any stand in the eye of law. Sections 138 and Section 142 of NI Act deals with cases of cheque bounce. There may be various reasons for Cheque return including payment stopped by the account holder are amounts to offence under Section 138 and 142 of NI Act.       

Lakshmi Kanth
Advocate, Hyderabad
435 Answers
15 Consultations

4.7 on 5.0

His admission for issuing the cheques towards outstanding dues is sufficient to prove him guilty, his admission to lesser liability cannot provide him any relief.

 

The admission made by him towards issuance of cheques itself is enough for convicting him.

 

 

 

T Kalaiselvan
Advocate, Vellore
56740 Answers
705 Consultations

5.0 on 5.0

1. Opinion of advocates may differ .

2. You can file 3 separate cases or or a single case containing 3 cheques in the same petition.

Devajyoti Barman
Advocate, Kolkata
17816 Answers
253 Consultations

5.0 on 5.0

Sir different cause of action for different cheque and you can file a seperate complaint for each but you have to show the liability that is legally enforcable debt as in three cases also he can take defence.

Shubham Jhajharia
Advocate, Ahmedabad
19365 Answers
76 Consultations

5.0 on 5.0

1. There's no wonder in the different options by different lawyers.

If bench can differ the decisions from each other, there's nothing wrong in advocates differing from each other.

You can choose whichever suits you.

2. If it's a single case then what difference it makes with different cause of action.

 

T Kalaiselvan
Advocate, Vellore
56740 Answers
705 Consultations

5.0 on 5.0

you have filed one complaint in respect of 3 cheque’s 

 

2) if debt dues and payable is only 4.5 lakhs and not 7.5 lakhs he would be acquitted 

Ajay Sethi
Advocate, Mumbai
66996 Answers
4045 Consultations

5.0 on 5.0

The cause of action for filing a compliant on the bases of a cheque arose as and when the said cheque got dishonored.  According to your inputs of query you are dealing with three separate cheques amounting Rs.2,00,000/-, Rs..2,80,000/- and Rs.2,80,000/- respectively and all the three cheques are got dishonored separately and there must be three separate cheque return memos. It seems basing said three separate cheque return memos you have filed one compliant under section 219 cr.p.c. taking as three offences of same kind within year has to be charged together. The out standing due amounts must be also three separate transactions. 

 

It is the case of the accused that he is having issued cheques to you for your outstanding dues and admits the liability to the tune of Rs. 4.5 lakhs instead of Rs.7.6 Lakhs. 

 

You have very good case and there is possibility convicting the accused. 

  

 

According to a recent judgement of the Delhi High Court in RENAISSANCE FUNITURE PVT., LTD., VERSUS JEMINI REALTECH PVT LTD AND ANO - 2017 1 Bankmann 303 made it very clear that, "Dishonor of each cheque constitutes separate offense giving rise to a separate cause of action" which is squarely applicable to your case.  

 

Judgments of AP High Courts too supports the case under section 219 cr.p.c if the statuary notices were issued separately.  

Lakshmi Kanth
Advocate, Hyderabad
435 Answers
15 Consultations

4.7 on 5.0

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