File quashing petition under section 482 in Kolkata High Court under which MM Court proceedings are going on praying for quashing of 138 complaint against you and stay of proceedings till disposal of petition.

After quashing order is obtained which in all probability will be allowed considering the facts of your case, file criminal application under Section 340 for tendering false evindences in court against the employer. You have not mentioned whether your employer is a company covered under Companies Act, 2013. If yes, the loan given by employer to employee without a company policy in this regard is a invalid transaction.

The quesh is not simple and easy. And expanses will be more than cheque value.

Find an advocate at lower court who have contested cheque cases and you can win the case easily at lower court.

This case is at Raipur District and Session Court which is in the state of Chhattisgarh.

Will there be any jurisdictional issue ? If not, your advise is really very convincing and suitable.

Please further advise on the jurisdictional issue ?

Section 482  of Criminal Procedure Code Explains :

"Saving of inherent powers of High Court. - Nothing in this Code shall be deemed to limit of affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justic.

FIRST OPTION

Well - Now coming to the fact of the complaint case filed : The alleged accused, a resident of Howrah, West Bengal, was employed at Raipur, Chhattisgarh, by a private limited company registered under the Companies Act, 1956. The employee was convinced by the employer that signing of bond by every employee was a must and accordingly, under influence, a bond for 3 years was got signed from this employee also. The behavioural disputes arose and employee refused to sign the appointment letter and requested the employer to release him as soon as possible which was not materialised. 

Employee availed a Furniture loan of Rs. 40,000/- and issued two undated cheques of Rs. 20,000/- each as collateral security. The said loan was to be deducted in monthly instalments of Rs. 6 thousand something, which started. As the behaviour of the employer further worsened, the employee left the  job and informed the employer over phone of his intention. After taking into account the salary deducted and the residue  of his balance salary a total sum of Rs. 9661/- was due to be paid by the employee at the time he left the job. The employee worked only nearly for 4 months.

As the employer became revengious and to show his vengeance they got the two cheques bounced and filed two false cases against the employee accusing  that the employee had taken a personal loan of Rs. 40,000/- separately against which two cheques were issued  which were to be presented to the bank in the interval of 6 months. The cheques were undated and was drawn on a nationalised bank situated in Kolkata. The matter is now proceeding in District and Session Court at Raipur, Chhattisgarh.

On the last date the Sesson Judge had ordered for "Complainant Evidence".

Once the Affidavit is filed by the Complainant can the advocate of the employee/ accused ask for the following documents ;-

1. A Copy of the accepted appointment letter.

2. A copy of the loan application by the employee.

3. A copy of loan agreement entered into between the employer and the employee for giving a personal loan.

4. A copy of Company policy depicting the policies on loans applicable for the employees (As the company is a private limited company and registered under the Companies Act, 1956).

5. An extract of the Books of Accounts showing entry of the so called loan amount allegedly given to the employee.

Please advise whether all the above documents will suffice the purpose of the accused to prove himself innocent. Or, is there any other documents which can be asked for from the complainant ?

SECOND OPTION

In the light of the Section 482 of the Code of Criminal Procedure, as depicted above, can the employee knock the door of the Hon'ble High Court of Chhattisgarh to quash the complaints and stay the proceeding ? The complainant is abusing the court process and wasting the time and labour of the court by filing a false cases ?

The expenses and the time required to undertake journey from Howrah to Raipur to attend the court every month involves heavy and unbearable expenses on the part of the accused and it seems impossible to register his presence on every dates. The case is false and the employee had not commited any mistake. For no fault, the employee is now depriving of his fundamental rights. And in this context, can he approach the Hon'ble High Court at Chhattisgarh praying for quashing the complaint petition ? If yes, under which section and what are the procedures to be followed?

I appreciate, giving suggestions on the above is little time taking, yet, your expert advise will certainly help a bona fide citizen of India. It will also help those suffering from the same and similar situations.

I am a little confused about the facts of the case. The employee was given a loan of Rs.40000/- The amount was to be deducted from his salary in instalments. The employee had given two cheques of Rs.20000/- as collaterals. As they were only collaterals there must have been an agreement on the advancing of loan, the manner of recovery of the amount from his salaries and regarding contingencies like the enployee leaving the job before full repayment of the amount. Though the cheques were for a total of Rs.40000/- the liability under Section 138 will be only for the amount due at that point of time. What was the amount due at the contingent point of time? Was it Rs.9661/- ? Was it that in order to recover Rs.9661/- the employer presented the 2 cheques of total value of Rs.40000/- at the bank which bounced back due to inadequecy of funds? Did the employer send notice to the employee as required under Section:138? What the amount due as per notice and what was the response of the employee for such notice? He could have paid his former employer Rs.9661/- and given stop cheque instruction for his 2 Rs.20000/- cheques. In case there was a dispute regarding the Rs.9661/- it will only be civil dispute and criminal provisions of Section 138 will not be attracted. The procedure under Section 138 gives ample scope for compounding of the case at every stage. The employee should pay up the balance amount and call it quits instead of facing the prospect of shuttling between Howrah and Raipur.

Two Cheques of Rs. 20,000/- each were given against a furniture loan of Rs. 40,000/- as collateral security.This loan was deducted from the salary of the employee and at the time of leaving of the organisation (against the will of the employer) a sum of Rs. 9661/- was due to be paid to the employer. This is the actual story. 

They are falsely claiming and alleging that a separate loan of Rs. 40,000/- was given by them against which these two cheques were issued by the employee. And to harass the employee, they have got the cheques bounced and filed two different two cases at Raipur District and Sessions courts. Cases are pure false and the motive behind this is only to harass the employee. 

Now, suggest a way forward ?

Your below suggestion gives a positive hope on the part of the employee :

'"The procedure under Section 138 gives ample scope for compounding of the case at every stage. The employee should pay up the balance amount and call it quits instead of facing the prospect of shuttling between Howrah and Raipur".

Please further elaborate and give what to do on the next date fixed at the end of May, 2017. What is the procedure for "quiting" without prejudice to the rights and contentions of the employee?



 

Now the picture is entirely different from what it appeared before.

Were demands as required under Sub-section 138(b)  made by the complainant? Were the demand notices replied by you? Was there any reference to the furniture loans of 2 x Rs.20000/- made either in complainant's notice or in your reply to the notice? If there were no references to the furniture loans do not bring them in on your own. The question of furniture loans will come only when you have to explain under Section:139 as to why you issued the cheques in the first place.

You can certainly ask for the 5 documents referred to by you. Even before asking in writing for the documents cross-examine the complainant and make him commit on the floor of the court. Do not give him time to think and fabricate.

As stated by Advocate Laxmi-narayan it is very difficult to quash the case. If you are on bail, you can ask your lawyer to attend the hearings. Expenditure on that is inevitable.

Generally in such false or rather half-truth cases if you meticulously go through the averments of the complainant and his lawyer  you will find many discrepancies which you can catch on and blast the case.

Remember this case has nothing to do with your furniture loan.

Thank you very much Dr. Ramani for these  valuable advices. 

Your suggestion : 'As stated by Advocate Laxmi-narayan it is very difficult to quash the case. If you are on bail, you can ask your lawyer to attend the hearings. Expenditure on that is inevitable".

Is there any Provision in law under which the accused like above can seek waiver from personal appearance ? 

Please advice.

I have been given to understand that in 138 case, the accused is required to be present on every date. In this case the accused on bail after giving a sureity of Rs. 5000/- from one of his relatives. 

I find that the opinion of experts in this forum is that exemption from personal appearance is not possible. I suggest that at first you apply to the court to combine the two cases. You can also try applying for exemption from personal appearance. If you file affidavits and counteraffidavits the case will get prolonged. You cross-examine the complainant on the five points mentioned by you, resist adjournments by the complainant to file replies to your questions. Instead of asking in writing for the 5 documents you straight ask the complainant in front of the magistrate and tell the magistrate that this is a patently false case instituted to harrass you.

For combining two cases of same alleged loan, where to apply ? Presently these two cases are with to different judges of District and Sessions court, Raipur. 

Please advice,

Secondly, can accused himself discuss and put forward his defence before the judge (kddping advocate beside him).

When you appear for one of the cases you can request the court to combine it with the other case. The accused himself also can supplement his own case with the permission of the judge. Inform your own lawyer also in advance.

If it is Personal loan and not Company loan.   If the Complainant is contesting in his personal capacity.   If the cheque has been bounced in his personal bank account and not through his company bank account the case is completely different.  

Quashing at High Court could be difficult.

In the first place there was no loan at all and hence no question of personal loan. The accused should mention the furniture loan only for explanation under Section:139 and not otherwise.

We are reading here only the Defence side versions.  How the complainant has built up his case is not known.     The Court would apply his mind whose version is true and whole version is lie.   Usually in 138 cases it is contested on debts given so a Complainant will build up his case along that line.  If the defence side in order to break it takes the defence that it is not personal loan but furniture loan he would be having a burden on his shoulder to prove it with the documents that he relies.   The loan sanctioned letter in Company's letterhead as furniture loan could be a solid proof.