supraven (asda) 16 November 2009

Cheque bounce case procedures

Dear experts,

I was issued a cheque by my builder,who failed to deliver his project and the cheques bounced.After repeated requests to him failed,I filed a criminal case against him in the court.

The cheques issued by the builder are bangalore branch.It was deposited in hyderabad.The case was filed in Hyderabad court.

Is this a right thing?Or the case should be filed in Bangalore?

It has been nearly 2 years since the case has been filed and obviously the builder is rejecting all the notices sent from the court.How long will this notices be sent?

What is the legal procedure and formalities in case of a cheque bounce case?Does the court expects me to bring the builder to court,to prove his guilty?

Is there any timeline,within which the cheque bounce case be resolved?

Please somebody help me in getting an idea,as to how to deal with this case.Iam able to go nowhere in this case for the past 2 years.

thanks in advance for your expert help

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4 Replies

Darshan Sharma (Lawyer-cum-detective) 16 November 2009

YOU HAVE NOT GIVEN THE LOCATION OF THE PROJECT, LOCATION OF THE OFFICE OF THE BUILDER, BANK LOCATION OF BANK FROM WHERE YOU MADE THE PAYMENTAND OTHER FACTS OF THE CASE.

AS HYDERABAD COURT HAS ALREADY ADMITTED THE CASE, THERE IS NO NEED TO GO TO BANGLORE COURT. THE HYDERABAD COURT SHOULD SUMMON THE CULPRIT AND DO FURTHER NEEDFUL.

AEJAZ AHMED (Legal Consultant/Lawyer) 16 November 2009

Dear Supraven,

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Reply With regard to First Part of your query:

" It was deposited in hyderabad.The case was filed in Hyderabad court. Is this a right thing?Or the case should be filed in Bangalore? "

A place, for that purpose, would depend upon a variety of factors. It can either be:

i) at the place where the drawer resides

ii)at the place where the payee resides

iii) at the place where either of them carries on business.

iv) at the place Where the cheque was presented for encashment.

v) at the place Where the cheque was returned unpaid by drawee bank.

The offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. Following are the acts which are components of the said offence: (1) Drawing of the cheque, (2) Presentation of the cheque to the bank, (3) Returning the cheque unpaid by the drawee bank, (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice.

Thus it is clear, if the five different acts were done in five different localities any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act.

{ Vide : K. Bhaskaran v. Sankaran Vaidhyan Balan }

https://www.indiankanoon.org/doc/529907/

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Reply With regard to Second Part of your query:

"Obviously the builder is rejecting all the notices sent from the court"

It is well settled that a notice refused to be accepted by the addressee can be presumed to have been served on him.

{ vide Harcharan Singh v. Smt. Shivrani and Ors. , and Jagdish Singh v. Natthu Singh }

Para No: 7 of the Judgment (Harcharan Singh v. Smt. Shivrani )

https://www.indiankanoon.org/doc/769210/

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And on non-appearance of accused after " rejecting/refusing to receive the notice" the Hon'ble Court shall issue Non-Bailable Warrant against the Accused.

My conclusive response to you is that, ask your Advocate to advise the Hon'ble magistrate to issue NBW, as on several notices accused rejected to receive the same, and after issuing of NBW you can proceed for to arrest the accused and police shall produce him before the court.

For further details about ' Cheque Dishonor Case' kindly go through the Article on following Website, it will clear your doubts.

https://www.legalserviceindia.com/article/l277-Dishonour-Of-Cheque.html

R.K.SUNDERRAJ (LAWYER HUBLI,KARNATAKA) 28 November 2009

2008 (4) KCCR 2915 KARNATAKA HIGH COURT.

C.P.C. 1908 Sec 20 and Indian contract Ac Sec 28 : Jurisdiction of court.

Wheather parties can confer Jurisdiction on a court within whose Jurisdiction no part of cause of action has arisen- Held No.

When two or more courts have Jurisdiction to try a suit or proceedings, an agreement between the parties to that effect that the dispute between them shall be tried in any one of such courts alone is not contrary to Public Policy and in no way contravenes Section: 28 of the Indian Contract Act . However by an agreement parties cannot confer Jurisdiction to a court which otherwise has no jurisdiction to deal with the matter

(B) CPC 1908 Sec 20 :

Wheather the “CORPORATION” under Sec 20 : of the code includes “Company HELD . Yes.

The word “Company” referred to in Section 20 : of the code means also company registered under the Indian companies Act. Further Held,in view of the explanation to Sec 20 CPC, ordinarily a suit against a corporation shall be filed at its sole or principal office in India, irrespective of the fact whether the cause of action to sue has arisen there or not, but when the cause of action to sue a company has arisen at a place, where it has arisen at place where it is having its subordinate office, the suit must be filled at that place and it cannot be filled where the company is having its principal or registered office.

In the present case, the respondent-company had its branch office at Bangalore and its principal office at vadodara, Gujarath. HELD, the COURT at Bangalore alone had Jurisdiction and the Trial Court erred in ordering for return of the plaint

Further held, the agreement entered into Between the parties conferring Jurisdiction on the Court at Vadodara. Where no part of cause of action had arisen, was void and was opposed to public policy.

jibak (Advocate) 30 November 2009

Filing in Hyderabad court is corect regarding filing case as per 138 NI act,however if accused is avoiding to receive notice of summon in such case the complainant can apply for substition of notice i.e. pasting summons.