I went for my masters to the US 18 months back. But before leaving I gave some cheques to a family friend who gave money to my father for his business. The money was transferred to my account only. But my fathers business went into loss and that family friend might file a cheque bounce case against me. I know that my cheques are not valid after 3 months.I am planning to come to India for winter holidays. But my parents are warning not to come. Can I get some advice on this matter?
The cheques would be valid after 3 months.
There is no problem in coming to India as your friend will have to serve legal notice to first and give you 15 days time before filing a case against you.
Even if it is filed against you, it is a bailable offence and would pose no problem to you. Cases under section 138 of negotiable instruments Act are quasi criminal in nature. You can come down to India whenever you want.
See if the case is not already filled it is out of limitation and now after 18 months of giving cheque with date the case cannot be filed though if it is already filed don't come till the amount is settled.
Or you have to come and contest the matter and secure a bail too.
Also in case the person failed to file cheque bounce case he can file other case of cheating or a recovery suit to recover the amount.
Hi,
From your query, it's not clear as to when you issued the cheque and what was date of payment. If that cheque was dishonored, whether you got a legal notice or intimation from court? It is hereby informed that you may check the pending case status, if any and then you may plan accordingly. It is also informed that case of cheque bounce is bailable in India and you not worry much.
1. Before the filing of cheque bounce case the payee is legally obligated to serve a demand notice to the drawer of cheque. The criminal complaint for cheque bounce is to be filed if the drawer fails to pay the amount covered by cheque.
2. In a cheque bounce case there is a statutory presumption that cheque has been issued to discharge a legally enforceable debt, and the onus is on the drawer to rebut this presumption through cogent evidence, hence if he fails to rebut this presumption then conviction is inevitable.
3. You may immediately want to serve a lawyer's notice to the friend who is in possession of your cheques.
If cheque has been presented and dishonoured legal notice would have been issued by drawer to make payment within 15 days of receipt of notice
2) if you failed to make payment then only case would be filed against you under section 138 NI
3) you can come down to India during holidays
Hello,
Before he files an application under section 138 of the N.I.Act he will send a demand letter. Try to amicably settle the issue.
Regards
Desr Client,
Have you received notice regarding bouncing of the cheque? Have your Cheque been deposited in the cheque for encashment? If 'Not' than you don't need to worry.
1. Well, since you have taken money at least on paper you are bound to repay the loan.
2. Now to repay the loan you have already given the cheques and if that was undated then the drawee can put a date and place it for encashment at any time within 3 months from the date mentioned there.
3. In cheque bouncing case if you fail to contest then warrant of arrest would be issued.
4. So either make compromise with your creditor by clearing his dues so he withdraws the case or come , take bail in tje case and then again go back to USA.
If cheques have date than only will expire after 3 months, blank cheque can be misuse any time. And it is evident that money is transfer in your account, hence you only shal be liable for any cheque bounce prosecution.
If criminal case filed for cheating along with cheque bounce complaint, your passport will impound and have to return and than possibility of few days incarceration. So better start arranging money.
Make some part payment, so that at least criminal case will not be maintainable.
If your cheques are dated, they would have become stale by this time. If blank cheques have been given by you, then if the same are presented and dishonoured then he would give notice to you for making payment.
You need not worry. You can come to India no problem.
1. The said cheque has not been deposited even after 18 months of its date of issue.
2. Hope you have not issued undated chaque.
3. Since your said cheque has not yet been deposited and bounced, the question of cheque dishonour case does not arise at all at thie stage.
4. You can visit India now to settle the matter and return to your place of staying.
If you have given dated or undated cheques kindly check first this. Because outdated cheques bank itself do not accept for the clearance.
1. IF the cheques were duly dated three months ago, THEN those cheques are no longer valid instruments and hence cheque bounce case CANNOT sustain in court. Further the bank itself is not going to send the outdated cheques for clearing. IF possible confirm the cheque dates with the cheque book/counter foils.
2. HOWEVER, irrespective of the above, the friend can still file "civil proceedings" as Recovery Suit, for the amounts he transferred in your account, based on such infructuous dated cheques and his bank statements. The limitation bar period for this is 24 months, from last date on cheque.
3. Tentatively There is no risk in visiting India, PROVIDED the cheque bounce case is yet not filed, since it takes more than 6-10 months to issue summons and by that time you will return back.
If you have given the undated checks and the receiver of the cheque deposit those check after putting the date and follow the procedure for the cheque Bounce and you receive legal notice then only this fear is legitimate that a case of cheque bouncing will be made against you if you have given text with date is still checks cannot be deposited in the bank so the question of Section 138 of Negotiable Instrument Act does not arise however it is a possibility that case of cheating under section 420 and misappropriation or breach of Trust under section 406 maybe initiated in the police station for a private complaint can be filed in the criminal court in case police denies to take the FIR to request the court to direct the police to take the FIR and investigate the matter
1.No need to worry until legal notice is served to your address under negotiable instruments act.
2. If you have written dates on cheque while handover to your friend then you don't have to worry because he can't file case on basis of stale cheques.
3. If dates were not written on cheques then he can present cheque any time and initiate the process for Filing the case but still he have to send legal notice to you before filing the case.
if cheque dishonored and legal notice issued then they can file 138ni act against you. better settle dispute amicably.
You should come back and negotiate with him that you will return the money. In case he decides to go ahead then file an anticipatory bail application.
Regards
Without a cheque bounce case filed against you, there is nothing to be afraid about it.
You will first receive a statutory legal demand notice and the complainant will file cheque bounce cae only after issuing the notice, hence you will get breathing time to decide about the further course of action once receive the notice.
Why don't your father talk to his friend and borrow some more time to repay the loan amount.
- A cheque bounce happens due to insufficient account balance, expired validity of cheque and overwriting among other reasons.
- it is a bailable offense and a summons case, hence you cannot be arrested , and will get bail easily.
- Since, you have given cheques of your account to discharge the liability of your father , hence you are responsible for paying the same.
- But, if you will not appear before the court, then Court will issue NBW against you.
- If you want to settle the dispute with that family friend , then your family members can compromised in your absence , your appearance is not mandatory to finish the case.
