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Binod Kumar Mishra (Government Service)     29 March 2009

court issued B/W under 138 of N.I.Act

Dear members,

my friends (MR.A) is in business of property dealing. his friend (Mr. B) is a builder. through Mr. "B", was in need of a land to construct apartment. he discuss this things with Mr. "A" and Mr. "A" has managed a property of Mr. "C" and a meeting was take place and in the meantime the settlement has reach between Mr. "B" and Mr. "C" and Mr. "A" has sign the power of attorney as witness. Mr. "B" paid RS. 4 lakhs in case to the owner of land besides the commission to Mr. "A and later on the power of attorney has been given to Mr."B" by Mr. "C".

later on Mr. "B" who also runs a job racket (That was later known to MR.A") has been issued a NBW by local court and he had left the place pending NBW. later on after 4 years all of a sudden he cracked into office of Mr."A" with his musclesman and forced him to sign to cheques amounting to total of Rs. 5 lakhs and also forced him to signed on a note sheet that Mr. B was carrying with him.

just after the shocking incident Mr."A" has reported the matter to LD. CJM. later on Mr. "B" has filled a case under section 420 and 138 against Mr. "A" , MR. "C" and brother of Mr. "A". late the court has taken cognizence on Mr. "A" under only section138 and issued a B/W against him.

now my friend MR. "A" is going to surrender before the learned court tomorrow. learned friend kindly guide me how to face the current problem. i want to enclose some of decision of the apex court in that such type of matter in surrender petition so that when the trial of the case will be started it will help my friend.

1) kindly enclosed some references.

2) will court will give bail to my friend.

3) will i go for quashing.

4) any other suggestions from my learned friend in that matter.

 



Learning

 2 Replies

Y V Vishweshwar Rao (Advocate )     29 March 2009

do not worry it  is bailable Warrant and Bail will be considered and granted on appliocation at the time  of   surrender/ Apperence in complience of the Warrant

B.N.Rajamohamed (advocate / commissioner of oaths)     05 April 2009

It seems you have filed a complaint before the CJM ,if you have filed a complaint before the police it will be more helpful . OK in yoiur petition to the CJM you would have mentioned about the forceful reception of signatures in the cheque by your opponent  that you can make use of while filing the petition for quashing.


It is a settled principle of law that, a complaint under section 138 of N.I.Act should not be thrown out at the thresh hold and the facts should be proved only on trial therefore, your quash petition will hardly succeed.


There is nothing to worrry you can surrender befor e the magistrate and you can get bail . It is only a bailable offence


 


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