"Anonymous" Started The Discussion:
I was signed a bond of 1.5 years with IT company in June 2012. even i was submitted my original documents as per company rules. During my increment period, company has forced me to sign another bond of 1 yr in march 2013 with two undated cheques of Rs 1.5Lakhs. company clearly stated that if you wont sign bond you increment wont done so i signed the bond again with current bond ongoing. Due to personal problems i left the company in the month of Oct 2013, left the city too. i have placed the my resignation in company but they were not accepted. i have no other way to go out without relieving and experience letters. now company deposited those undated cheques and files a legal case under act 138 and forcing me to pay 1.5lakhs. Please suggest me what should i do?
Posted 26th December 2013 From India, Pune
Bond is a valid document and one need to fulfill the obligations. But on the other hand, the company first needs to send a notice to the employee asking him to pay the default amount. Only if the employee doesn't pay up, the company can deposit the cheque. (Even this should be mentioned in the notice).

1. Are you sure, the company didn't send any notice before presenting the cheque in the bank?
2. If yes, what was the content of the notice?

Had they sent the notice and you refused to receive, it will still be treated as 'Notice delivered' in the eyes of law.

Approach an advocate and send reply to the company within 15 days. You have given 2 cheques and they have presented only 1. Mention in your notice all these and inform them to return you the un-presented cheque. Mention in the notice the reason, why had to resign from the job.

All the above points are to safeguard you against Sec 138.

Important point - Before posting the notice, approach the company and try to settle amicably. Do not believe in verbal commitment. If they say 'We pardon you and won't initiate action', don't treat black and white. Ask them to return both cheques and also get relieving letter. Do this within 7 days from the date, you received cheque bounce notice

If the company refuses to handover the cheques, you can go ahead with sending the notice. Do this within 15 days from date, you received cheque bounce notice. Advocate knows what reason to put, to make the company drop the case
Posted 27th December 2013 From India, Madras
Anonymous 
Hi Sivaramkrishnan,

Firstly thanks to your reply. i got the mail before they deposited the cheques. below is mail content.

As per the offer letter , service agreement (Dated 21st March 2013)and increment letter you have to follow the terms and condition as laid down in Annexure B of letters .
You are hereby directed to join immediately and confirm the same through mail within 24hrs otherwise necessary legal action will be initiated against you and the"security deposit cheques "will be deposited to recover the pending dues.

I have already mentioned the reason and i also informed that i left the city and staying away.
Posted 27th December 2013 From India, Pune
How many days it has been since you recd. cheque bounce notice from company?

What reason have you given for resigning? Did you give any specific reason or you just mentioned 'personal'?

What is your gender? (The reason I ask is that, there can be few concessions in case of female employees)
Posted 27th December 2013 From India, Madras
Anonymous 
I received the notice 3 days ago. its really more personal one thats why i never disclosed on mail. i mailed it as personal problems. but i informed my boss what personal problems leads to leave the city on phone call. I am a male employee. what should i do. feeling worried with legal actions. please suggest me.
Posted 27th December 2013 From India, Pune
Send a mail to the company requesting them to pardon you and drop the issue. Request them to handover over the cheques and issue relieving letter. Do not mention any reason for resignation in the mail. Give them 2 or 3 days time. Keep following and talking to them politely. Control your emotions. Even when you talk over phone, don't tell any specific reason as to why you quit (there is a chance of they recording the conversation).

If it doesn't work out, approach an advocate. It would be great if he handles labour matters too (not necessary though). As mentioned in the first post, an advocate knows what to include in the reply notice, to make the company drop the case.
Posted 27th December 2013 From India, Madras
Anonymous 
Thanks a lot Sivaramakrishnan. Thanks for valuable suggestions.
Posted 27th December 2013 From India, Pune
The answers are not simple and straight forward.
They depend on the circumstances of the case.

1. Check the forum and read other posts on bonds. It may or may not be valid depending on whether or not you were given formal training.

2. You should issue "Stop Payment" instruction against the cheques to your bank (you should have done it immediately when leaving)

3. The cheque bouncing criminal case is not valid when the cheques have not been issued for payment of any service or goods. So you need to speak to your lawyer and get him to send a reply, as well as a stop and disist letter warning of a harassment case if they dont stop.
Posted 27th December 2013 From India, Mumbai
Stop payment can be issued to bank, only if one have sufficient funds in account.

For eg, If I had issued cheque for Rs. 10000 and my balance is Rs. 10001/-, I can issue stop payment. If my balance is only 8000, I cannot issue stop payment

Agreed, for sec 138 to apply, there has to be a 'consideration'. Consideration includes obligation to honour a commitment. To my knowledge, if I issue cheque for Rs.10000 to a charity and default, the charity organization can file suit against me. Generally, charitable organizations don't file suit.

In this case, the member cannot issue stop request. To issue stop request, he needs to deposit Rs. 1,51,000 and then issue stop payment. Under this circumstances, even if cheque is presented, the bank will send it back and 138 won't apply.
Posted 28th December 2013 From India, Madras
Dear Siva

As a matter of fact, the individual did not fill the amount. Hence he was not aware of the amount being filled and deposited with bank. But the individual is aware of the Cheque Number. Hence with the Cheque Number duly signed without filling the amount was given to Mr.___ or M/s ___ can be given to the bank for stop payment action. Hence there is no question of available balance in account. Hope you can understand why Saswata has mentioned like this.
Posted 28th December 2013 From India, Kumbakonam
Stop payments are made based on the cheque number and irrespective of the amount of the cheque.
So he can issue stop payment orders even if the account had nil balance. Else, in case of lost cheques, how will you issue a stop order ? Check with your bank. The bank online systems also simply ask for the cheque number for which stop payment order is to be issued.

Sec 138 does not apply where no consideration is present.
Obligation to honor a commitment is not recognised under contract act as consideration, except for cases of promissory estoppel (where the other party has made further commitments or spent money on expectation of the consideration). In this case a sec 138 does not apply. Further, sec 138 can not be used in case of any dispute between the parties on the transaction for which the cheque was issued. This has successfully been used in court to quash sec 138 proceedings


Posted 28th December 2013 From India, Mumbai
I agree that in the absence of consideration, 138 doesn't apply

I am not a lawyer, but have little knowledge on these. Lost cheque is a different case altogether.

One can issue stop payment by just giving cheque number. Bank is under no obligation to honour if the Account balance is not sufficient. As per the act, Bank can refuse to honour a cheque only if the account balance is more than the cheque amount. Else, some people would issue cheque and give stop payment advice every time.

As per the N.I. Act, even if one sign a blank cheque, in the court, it is considered valid. The payee can fill any name, any date and any amount. (Of course consideration needs to be established in court).

When you report loss of cheque, bank won't honour it. Once the cheque is presented for clearing, you get intimation that a lost cheque has been presented for clearance and legal formalities follow as to whether the 'cheque lost' complaint was a genuine one or to defraud. Had I given a cheque to X and lodged 'Cheque lost' complaint, I can be tried under N.I. 138. I can even be tried under other sections of IPC for trying to defraud bank and X.
Posted 28th December 2013 From India, Madras
Well, your contention on stop payments are completely wrong.
Once a stop payment is given then the bank is under obligation to return the cheque with a comment that there is a stop payment order. In case there is a theft reported, then the cheque will be kept by the bank pending police action (which is not in this case)

My other comments stand.
Let the original poster do his homework first on whether the bond is legal or not.


Posted 28th December 2013 From India, Mumbai
When I said Legal formalities would follow, in case of a lost cheque, it includes Police action.

Once reported as stolen, cheque cannot be honoured. Both parties are called by bank to present their case and Bank first probe with the help of their vigilance team. If criminality is established, then it is forwarded to Police. If no criminality is established, no action would be taken. (For eg: After reporting loss of cheque, if customer finds his cheque book, but fails to report to bank and issues this cheque to another party).

Criminality part comes when a customer issues cheque to another party and reports loss of cheque or If 3rd party fills detail in a stolen cheque and present it for clearing. Under these circumstances, police action is initiated. In case payer is at fault, he can be tried under N.I. Act 138 and IPC sections. If payee is at fault, he can be tried under IPC and other sections of N.I. Act

I guess I am clear.

Payee can be tried under 138, if he issues a cheque for Rs. 10000 but has only 9000 in the account and gives stop payment. On the other hand, if the account balance is Rs.10000/- one can issue stop payment and 138 won't apply. Dispute on payment terms between payer and payee will not prevent bank for honouring / dis-honouring a cheque, unless it gets direction from court. You can check this with any good lawyer. (All these, subject to consideration being present. I am not responding with reference to the query raised by Anonymous member here. This is as per regulation issued by RBI ).

With regard to query by Anonymous member, whether consideration is established or not, it is for the advocate to check all the terms of the agreement
Posted 28th December 2013 From India, Madras
Anonymous 
Hi Saswatabanerjee,
I went through all the comments. Thank you all for valuable suggestions regarding cheque bounce issues. I consulted a lawyer and sent a reply to company's notice. Once again Thank you all.
Posted 29th December 2013 From India, Pune



 
 
 
 







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