Defence under section 138
I had taken a loan of 4 lacs from my cousin on 1st July 2015 and had issued my cheques for repayment of Rs 6 Lacs (2 lacs being interest of 50 % for one month). Unfortunately my cheques bounced due to lack of funds on 1st August 2015 I assured him that I shall repay him in the first week of Sept 2015 but he threatened me under section 138 that he will send me to jail,I am a senior citizen 0f 66 years. I have all intention of repaying the full amount as early as possible. Kindly guide me as to what I should do now.
Thanking you and regards
Asked 2 years ago in Criminal Law from Pune, Maharashtra
1. Have you been issued a lawyer's notice by him? If yes, then reply to the notice through your lawyer and offer to pay the amount which you are liable to pay.
2. If he files a criminal case for cheque bounce against you in the court you should take bail. The court will afford you an opportunity to enter defence to rebut his case. You will not be thrown in jail at the throw of a hat.
3. At this stage wait for the legal notice to be issued. Once it is issued have it replied by your lawyer and then follow it up by remittance of the amount of loan.
1. Since you are willing to pay I wonder why are you so worried.
2.To gain his trust and restrain him from filing the case start returning him money.
3. Do remember to take back the original bounced cheque while making the repayment so he may not file the case later even if you made the payments.
For cheque bounce case, it will not be possible to send the accused to jail immediately after the cheque is bounced. The holder has to first issue a mandatory demand notice informing the cheque bounce and demand the payment by giving you 15 days time to settle or make the payment. After that within one month he may file the cheque bounce case before the magistrate court and then the court will send summons and after that the case will go on with trial proceedings for few years and then only the court will pass the judgment after hearing both the sides. This process may take even three years from now, thus you will have sufficient breathing time to settle the matter hence need not be panicked by such threatening calls. Ask him to proceed through court and you can challenge it by engaging a good lawyer to defend your case.
Offence under Section 138 of the Act is based on the completion of the `chain of commands
1. Drawing of the Cheque and presentation to the bank;
2. Return of the cheque unpaid by the bank where it was dishonoured;
3. Issue of a notice in writing is given to the drawee and demanding the unpaid payment;
4. Inability to pay of the drawee to pay within a 15 (fifteen) day period of the receipt of notice;(most probably you can get 45 days time )
So you can get time, when you receive a notice you send a replay that you are ready and willing to pay the amount. You can also get opportunity to settle the claim even if he file the case before the court. So don't worry if you are ready to settle the matter .
No need to worry.
Wait and watch, when he send a legal notice to you then first of all reply the notice with real facts and demand some time to pay the real amount, if he will be adamant then wait till the receiving of the summon from court when you received the summon then appear before the court on date fixed and try to settled the matter or pay the amount before court. Through this you will get time.
Advocate, New Delhi
Before sending you to jail he will have to send a demand notice to you asking for his money it is required as per the law. In reply to that notice you may promise to pay his amount. The notice will give you 15days time to pay. Furthermore if after that also he files a case against you assure the court that you have intentions to pay and will pay in instalments in that case court will grant you some time to repay the loan amount. So don't worry as such court procedures are very slow nothing happens overnight.