• Section 138 & section 357 of Cr. P.C.

Sir I  received a demand & than notice under section 138 & 357 of Cr. P. C. For bouncing a cheque of Rs.180357. The cheque bounced was security cheque issued at time of taking personal loan of 480000 in July 2007. The said cheque was blank & signed by me.I was not informed before presenting the said cheque. Also I had not denied the demand notice of advocate . Now the  case is in mumbai metropolitan Magistrate Court. Please guide me as I am 60 years old with no legal knowledge. Thanks.
Asked 2 years ago in Criminal Law from Mumbai, Maharashtra
1. You have availed loan which you shall have to repay with agreed interest within agreed period,

2. You can not call it security cheque for the mere fact that it was blank but was signed by you,

3. If you sign a unfilled up cheque and handover to someone, it is imperative that you are giving him the right to fill it up at his suitable date which he has done in your case,

4. You can only escape your liability to pay for the dishonourded cheque if you can establish that the said cheque was not issued against any of your dischargeable liability,

5. Being 60 years old is no ground for escaping the repayment liability,

6. Talk to the Bank and try to settle the matter amicably.
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0
1. Did you reply to the notice issued by their lawyer? Please note that in cases of cheque bounce the demand notice is germane to the various legal pleas which can be taken before the court. So it is quintessential that one responds to the notice issued for demand. Being a lawman it is not clear to me as to what you intend to convey by '' I had not denied the demand notice of advocate'', but  if it means that you did not reply to within the legal parameters then all I can say is that it was a blunder.

2. There is no obligation imposed by the law on the party to whom a blank cheque is issued, to inform the drawer before filling up the cheque and/or presenting it to the bank. By giving a blank cheque to some one you expressly confer on him the right to fill it up and have it presented for encashment.

3. The only way you can escape the rigours of law is by showing that you were not liable to pay the amount demanded from you.

4. Since the case has been filed against you it is imperative that you talk to a lawyer and show him all the case related documents so that he may acquaint you with what ought to be and can be done.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
What is the status of loan? Was it sanctioned? If yes then is it repaid and have you got the NOC?

If your answer is in affirmative in all these questions then I may say that the proceeding of 138 would not proceed as the supreme court in catena of decisions made it clear that no proceeding u/s 138 BI Act would lie if the same is based on security cheques.

So now you can file case for quashing u/s 492 crpc in high court. Even if it is not allowed you can prove the same in trial. Nothing to worry.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
Dear Querist
Try to settle the matter amicably with the bank, if there is any evidence that the cheque was security cheque then you may fight the case.
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
It is undoubtedly true that when a cheque is issued by a person who has signed on the cheque and the complainant reasonably discharges the burden that the cheque had been issued towards a lawful payment, it is for the accused to discharge the burden under Section 118 and 139 of the N.I. Act that the cheque had not been issued towards discharge of a legal debt but was issued by way of security or any other reason on account of some business transaction or was obtained unlawfully.

Joseph Vilangadan. v. Phenomenal Health Care Services Ltd. & Anr.2009 bombay High Court held that no offence made out in bounce of security cheque. 
but you must read deed, if there is any provision that security cheque may be used for discharge of your liability then it is an offence. because you have signed and agreed to discharge your liability through deposit of those cheques.
Shivendra Pratap Singh
Advocate, Lucknow
2771 Answers
41 Consultations
4.9 on 5.0

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