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Lender(1st party) gives loan to Borrower (2nd party) via a cheque which deposited in my account and I gived security cheque to lender as per agreement but as it is mentioned in the agreement that if security cheque will get bounced then Borrower will be responsible for that But still lender filing case against me under section 138 of NIA and 420 of IPC I am student preparing for government job and not enough rich so how this case will effect my carrier and what should I do
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A. Dear Client, If there is writing agreementthat you will not be held liable for post dated cheque then in that condition court may release you from such liability, and you shall not be held liable by court.
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Sanjay Kumar Jha Exp: 17 Year(s) Patna
Kishan Dutt Kalaskar Retired Judge Experience: 33 Year(s) Bangalore
Sandeep Pingale Experience: 13 Year(s) Mumbai City
Shreyash Mohta Experience: 1 Year(s) Kolkata

Tushar Nehete

Posted 4 months ago

Dear sir, I have few queries. I will be thankful to you if you clear my following doubts. 1)What is better: to file two separate complaints or one combined complaint for cheque bounce u/s 138 NIA and 420 IPC? What are pros and cons of both? 2) Is it mandatory to first file police complaint under sec 420 IPC and only if it rejects to take it then and then only one can approach the court of law? or one can directly complain to the court? Can one directly file a private complaint case to the court instead of requesting it to order the police to register the FIR under CrPC? 3) If an FIR is filed with police for cheating, can the complainant hire a private lawyer instead of or in addition to public prosecutor? 4) What's better in case of sec 420 IPC complaint in cheque bounce: to file FIR with police and leave it up to the state or file private complaint in the court and hire a private lawyer? 5)Should one file a criminal case u/s 420 IPC after he loses the 138 NIA battle? Will it make any sense? 6) What legal action can be taken by the accused against a complainant who lost the case in the court of law for cheating u/s 420 IPC for cheque bounce and 138 NIA? What can be the punishments? 7) Can one file recovery suit in the civil court and consumer forum simultaneously in a cheque dishonour case? Or only either of the two? 8) If criminal court orders two times fine to the accused u/s 138 NIA, is the amount given to the complainant? If it is given to him can he also get the amount once more from a civil recovery suit won? And also from consumer forum the third time if simultaneous CPA & CPC proceedings are allowed? Will it not be an injustice to the accused? 9) Is it necessary for the complainant to mention in every complaint details of other fora or courts in which he has filed complaints before this for the same same cause of action and current status of those cases i.e. pending, lost or won etc? Thanks. -Tushar Nehete Law student, Jalgaon.
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A. Dear Mr Nehete, 1.It will be better to have one provided it is linked to cheque bounce. 2.Both the options are open.The choice is yours. Shanti Ranjan Behera Advocate
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Shanti Ranjan Behera Exp: 22 Year(s) Bhubaneswar
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Anonymous

Posted 4 months ago

I have given loan to one of my friend and I took a cheque for security purpose but she refused to pay and just after that she changed her home. I don't know her new home address. Is there any legal action can be taken against it ??
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A. Dear Sir, Get the assistance of Private Detectives to trace out the address and then proceed. Cheque bounce FAQs 1. In which court do I need to file the complaint case under Section 138 N.I. Act in case drawer did not pay after receiving notice? A complaint case under Section 138 N.I. Act can be filed in any competent court in whose jurisdiction any of the following acts have occurred: a) Place of drawing of the cheque, b) Address of bank where cheque was presented (holders bank address), c) Address of bank where cheque is payable (drawers bank address) d) Place from where notice was received by drawer of cheque a. It is possible that each of these four acts could have occurred at different localities. The complainant can choose any one the above places to determine jurisdiction of court where they wish to file complaint. 2. What can I do if it has been more than 30 days since I received information of dishonour of cheque? If the cheque is still valid i.e. 3 months (currently) have not passed from the date of its issue, you can represent the cheque again to your banker as there is no restriction regarding the number of times a cheque can be presented and that every subsequent representation and dishonour gives rise to fresh cause of action for filing complaint. It may be noted that once a notice for payment is given then the holder must file a complaint under Section 138 N.I. Act within 30 days from expiry of notice period as a fresh cause of action will not arise if the cheque is presented again and it is dishonoured and failure to file complaint will lead to loss of remedy available under Section 138 N.I. Act. 3. How long after notice has been served can I file a case against the drawer? After giving notice you need to file a complaint case against drawer under Section 138 N.I. Act within 30 days from the expiry of notice period i.e. 15 days. In other words you need to file complaint case against drawer within 45 days (15+30) from the date of issue of notice. Failure to do so will lead to loss of remedy under Section 138 N.I. Act; however, you can file a summary suit for recovery of money and initiate criminal proceedings under Section 420 I.P.C. within 3 years from date of issue of cheque. 4. What can I do if I do not have the drawer's address? You need the address of the drawer of cheque to issue notice as contemplated under provisions of N.I. Act; also the address is necessary if you wish to avail other legal remedies available to you. You can send the notice to the last known address. In case the address of the drawer has changed and the drawer has not left a forwarding address and the notice is returned with the noting that addressee is not available at the address or addressee has left without leaving a forwarding address then you need to file a complaint case after 15 days (notice period) of receipt of such information or returned notice and within 30 days from expiry of notice period. Failure to do so will lead to loss of remedy under Section 138 N.I. Act; however, you can file a summary suit for recovery of money and initiate criminal proceedings under Section 420 I.P.C. within 3 years from date of issue of cheque 5. What should I do if the notice was returned and could not be served to the drawer? When a notice is returned to the sender as unclaimed or with the noting that addressee is not available at the address or addressee has left without leaving a forwarding address then the date of receipt of such information or returned notice would be the commencing date for the notice period of 15 days. Complaint case under Section 138 N.I. Act must be filed within 30 days from expiry of notice period. Such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address or previous address. 6. Can Mohan Law Chambers assist in drafting of legal notice as required by Section 138 of N.I. Act.? Yes, Mohan law Chambers offers assistance in drafting of legal notice as required by Section 138 of N.I. Act. 7. How long after receiving information of dishonour of cheque do I have to serve notice to the drawer? You need to serve a legal notice to drawer of cheque demanding payment of cheque amount within 30 days of the receipt of information from your banker regarding dishonour of cheque under Section 138 N.I. Act. 8. What if the cheque was given for a reason other than to discharge a legally enforceable debt or other liability? In cases where cheque was given for a reason other than to discharge a legally enforceable debt or other liability, the provisions of Section 138 N.I. Act are not applicable e.g. Cheque given as Gift, in charity, donation etc. 9. Can a cheque issued in security attract offence under Section 138 N.I. Act? With respect to the dishonour of cheques given as security, legal position is not very clear. It is subject to presumption and proof thereof that may be given by either party in support of their case. High Court of Delhi in the case of M/s Datt Enterprises ltd. vs. V.K.Dua held that the security cheque does not attract the provisions of Section 138 N.I. Act., if cheques were given as a security cheque as per past practice and pending reconciliation of accounts and not towards discharge of any liability. 10. What is a legally enforceable debt or other liability? Legally enforceable debt or other liability should be such which is contracted in accordance with law and which is not opposed to public policy viz., wagering contracts, debt obtained for running brothel or gambling house etc. 11. What is Section 138 N.I. Act and why is remedy available under it preferable to remedy available under other laws? a. Section 138 N.I. Act was made to provide an additional criminal remedy over and above the civil remedies available; to provide a speedy and effective remedy to holder of dishonoured cheque. b. Summary suit for recovery of money takes time (approximately 3 to 5 years) and criminal proceedings under Section 420 I.P.C. does not provide any provision for recovery of money and is meant only for prosecution of the drawer of the cheque who entertains dishonest intention to cheat. 12. What is a summary suit for recovery of money? Summary suit is a civil legal proceeding initiated for recovery of money due under any written agreement, cheque etc. These proceedings are different from normal recovery suit, as here the liability to prove that petitioner is not liable to recover any amount is on defendant for which he needs to obtain leave to defend from the court. 13. What is the validity of the cheque in day to day business? The current validity of cheques is 6 months. However, please note that from April 1, 2012. The validity will change to three months as per recent directive of RBI (under Sec. 35A, Banking Regulation Act, 1949) 14. What can I do if a cheque given to me has been dishonoured? a. The holder of a cheque that has been dishonoured can seek remedy in the following manner: i) Action under Section 138 Negotiable Instruments Act (N.I. Act): Give notice under within 30 days of receipt of information of dishonour from the bank. In case of non- payment by the drawer within the notice period of 15 days, then the holder must institute a complaint case for prosecuting drawer within 30 days of expiry of notice period. ii) Civil Action as Summary Suit: Issue notice within 3 years from issue date of cheque and institute a summary suit for recovery of cheque amount along with interest and legal expenses. The notice can also be used while filing summary suit for recovery of money. iii) Criminal Action: Initiate criminal proceedings by filing complaint under Section 420 Indian Penal Code (I.P.C.) within 3 years from issue date of cheque. Please note that there is no provision for recovery of money under Section 420 I.P.C. and this section is meant only for prosecution of the drawer of the cheque when dishonest intent to cheat in inferred. 15. What documents / evidences do I need at the time of filing complaint case under Section 138 N.I. Act? You will need at the minimum, the following: a) Proof of service of notice - receipt of postal department / courier b) Copy of notice c) Cheque in original 16. What can I do if I do not file a complaint within 30 days from expiry of notice period? If you have not filed a complaint case within 30 days after expiry of notice period, you can file a summary suit for recovery of money and initiate criminal proceedings under Section 420 I.P.C. within 3 years from the date of issue of cheque. 17. What can I do if it has been more than 30 days since I received information of dishonour of cheque and 6 months has passed from the date of issue of cheque? a. Other remedies are also available to recover the cheque amount. You can file a summary suit for recovery of money and initiate criminal proceedings under Section 420 I.P.C. within 3 years from date of issue of cheque. In case the cheque was never presented during its validity period then a summary suit is the only available remedy for recovery of money. (Notice can be given to drawer up to 3 years from date of issue of cheque for instituting a summary suit for recovery of money. Criminal proceedings for prosecution of drawer can also be instituted within 3 years from date of issue of cheque under Section 420 I.P.C.) 18. The drawer is asking me to settle the claim at a reduced value. What should I do? Its up to you to settle the claim at a reduced value as the same will save your precious time, as well as legal hassle. Now-a-days courts are also encouraging amicable settlement between the parties. However, if you settle the dishonoured cheque amount at a reduced value, you will lose all remedies available under law. 19. What remedy do I have if the drawer delays in settling after conviction? In a recent 2010 judgement, Supreme Court has laid strict rules to deal with such delaying tactics. Delay in settling cheques bounced will cost up to 20% of the cheque amount post-conviction. This is detailed as: 10% at District Court level; 15% at the High Court level; and up to 20% at the Supreme Court level. For e.g., Defaulter going for settlement will have to pay 10% of the cheque amount to avoid going to the jail. 20. Can I recover interest and legal expenses from the drawer of the dishonoured cheque? Yes, you can recover interest and legal expenses from the drawer of the dishonoured cheque in a summary suit for recovery of money, but not in the proceedings initiated under Section 138 N.I. Act. However, under Section 138 N.I. Act the award maybe higher than the cheque amount. 21. What should I do if the drawer does not make payment upon receipt of notice? You can adopt either or any of the remedies available to you: a) Can file a criminal complaint against drawer of cheque under Section 138 of N.I. Act. b) Can file a summary suit for recovery of money, interest and legal expenses. c) Can file a criminal complaint against drawer of cheque under Section 420 of I.P.C. Please note that there is no provision for recovery of money under Section 420 I.P.C. and this section is meant only for prosecution of the drawer of the cheque. In case a person has filed suit for recovery, then he is not precluded from filing a complaint under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code. The pendency of criminal matters would not be an impediment to proceeding with the civil suits. For full procedure contact me on mobile through Vidhikarya. Rate me Five Star * Please visit the following link. https://vidhikarya.com/LawyerRating/9506c43f5d0b2d266a07
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Kishan Dutt Kalaskar Retired Judge Exp: 33 Year(s) Bangalore
Sunil Kumar Singh Experience: 17 Year(s) Kanpur
Sunil Kumar Singh Experience: 17 Year(s) Kanpur
Rameshwar Dadhe Experience: 2 Year(s) Aurangabad

Anonymous

Posted 5 months ago

This is for my friend. In cheque Bounce case he had been convicted and he has gone for an appeal in session court. In his case, due to not attending the case regularly his advocate could not able to submit any evidence for his support inspite of having the counterfoil slips of deposited amount and a cheque bounced for lesser amount returned by the opposite party has not been submitted to the honourable court I mean lower court. My question is is there any chance in the higher/ session court to submit the same for arguments
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A. Dear Sir, In the appellate court you try for remand to the trial court if successful your friend can get produce the documents and get acquittal. Approach a good lawyer otherwise conviction will be confirmed it is dangerous law. For full procedure contact me on mobile through Vidhikarya.
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Kishan Dutt Kalaskar Retired Judge Exp: 33 Year(s) Bangalore
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Srinivas J

Posted 5 months ago

Sir i attend 6 times on the court against my check bounce case so i cant attend court today And am a accused So what will happened today if i didnt attend the court
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A. Dear Client, It will be better if you ask this question to your conducting Lawyer/Advocate. If you do not get any answer then get in touch with me I will answer. Shanti Ranjan Behera Advocate
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laxman pawar

Posted 5 months ago

i have want to recover may money with may friend he give to me blank cheque and he is account balance is insufficient he talking with me on phone i will give your money this week and next month i think he fraud me
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A. just file cheque bounce case
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Kishan Dutt Kalaskar Retired Judge Exp: 33 Year(s) Bangalore
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Abdul basith

Posted 5 months ago

Sir, I paid 16000 job agent in Chennai for getting job but it's already 6 months, he not arrange any job and not return my money also, he gave one cheque 16000 rupees, but cheque bounced, please give me solution for this case. Thank you so much.
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A. A cheque bounce case can be filed.
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Dear sir i want legal help as one person is not returning my money back as he has given me PDC , he has given me date 15 dec 2018 to return the money and now extending the date again and again Kindly give me best advice and your charges to handle this case , Sanjeev 9312372110
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A. Dear Mr.Sanjeev Kumar, Share the details of the case history and your location and fix up an appointment through vidhikarya.com and I will let you know what to do next. Shanti Ranjan Behera Advocate
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"I book a flat in a project which was approved by bank and i signed all the documents but bank didn't disburse the loan amount to builder, they had taken some authority letter from builder and adjust all the money without informing me from his past dues with that bank (it means builder already was a defaulter and his approx five loan account stays with bank as NPA). My question isn't it will be a breach of trust because intentially bank hide builder's NPA and default to recover the money from his and bank simply transfer the liability of money from builder to my own head. Now builder becomes absconding and bank filled 138 cases by bouncing the cheque that they had taken with all the document at the time of approving the loan. Please give me the way to defend myself."
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A. Dear Sir, Yes, it is breach of trust by the bankers and you can resist cheque bounce case on the ground as on the date of issuing cheque no consideration was passed in your favour by the bankers. Your case requires deep study by the legal expert otherwise the recent tendency goes to show that many of the cheque bounce cases simply ended in conviction. For full procedure contact me on mobile through Vidhikarya.
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Kishan Dutt Kalaskar Retired Judge Exp: 33 Year(s) Bangalore
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Ravi Kumar

Posted 6 months ago

Dear Sir, My relative took tractor loan and given blank cheques. Due to non payment after 3 months it was recovered by finance agency. They sold it on auction. After deducting the amount received from auction, my relative is still due for Rs. 1,36,000. Finance agency had filled the blank cheque for the remaining amount. And filed case for cheque bounce. My relative had taken loan at Medak, Telangana and his bank account is in Hyderabad, Bank of India. But the case was filed in West Bengal, since the finance agency registered Office is at West Bengal. Finance agency offered for settlement for Rs. 60,000. They tell to first pay the amount and later they will give NOC certificate. If they don't give NOC after payment of RS. 60,000 what can we do? Please advise what precautions we have to take before payment? Please let me know case status " E/R of warrant"? What it means? Please advise
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A. dear client kindly you can file a suit after sending the due legal notice.
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