Dishonour of cheque case

Dear Mr/Sripartha,

          Admitting the offence is itself an invitation for punishment.The Magistrate should have given his/her verdict immediately once the accused has admitted the offence.I have seen many such cases.But as ur client is ready to pay the cheque money,you should have gone for a mutual consent with the opposite advocate.Insisting on punishment may be an act of revenge,but ultimately the complainant is the loser,if you go for an appeal in the High Court.Kindly get in touch with your counterpart.

You must have twin strategy contest in court with full force at the same dangle an olive branch in private to settle.

easier for any accused of Ni 138 case to come out of it since it is very difficult for the complainant to It is prove his case but you have to face trial , once court notice is issued no quash is possible even at higher court. , unless you are ready to go up to SC.

PEOPLE LOOSE BECAUSE OF CARELESSNESS FROM BEGGINNING. THEY WASTE INITIAL TIME IN TAKING DATES ONLY. YOU HAVE TO INITIATE PROPER ACTION FROM DAY ONE WITH EXPERT LEGAL ASSISTANCE THEN WINNING THE CASE WILL BE EASY, SIMPLE AND SURE.

So complainant need not be over confident , it will be next to impossible to win any NI 138 case if contested aggressively by accused from day one since the case has to be proved beyond doubt at many points that is a) there was legal liability b) cheque was actually given by the accused from his account , presented to the bank of the complainant and returned for want of funds e) proper dully authorized legal notice was given f) such legal notice was received by the accused g) thereafter proper pleadings are made and all documents are attached at first instance while filing the case.

Even if the presumptions are there in NI ACT the accused has legal right to rebut them which is more simple , sure and easy., and complainant make mistakes on one or more points/ steps., in over confidence.

Mr. Sripatha,

I can't understand how is it possible to file a cheque dishonour case for Rs.33,000/- when the cheque was issued for Rs.30,000/-.  Has he issued a blank of cheque?

Anyhow, as JSDN said, ways are many to obtain acquittal in cheque dishonour cases.  So, fight the case if the complainant is not willing to compromise the issue.

Else bring the said fact to the notice of magistrate, so that magistrate may take lenient view by considering the circumstances and he may impose  fine to the said extent and award the said amount  by way of compensation to the complainant, without sentencing to imprisonment.

Also enlighten the magistrate with the object of the enactment, which is not aimed to punish the accused.

In cheque dishonour cases, punishment will be up to two years imprisonment or fine or both.

It is a fit case to impose fine without imprisonment.

Mr.Sripartha,

      When I replied your query this morning, I really missed a major point in your query. I forgot it untill it was mentioned by learned colleague JSDN. The very fact that the cheque was issued for 30000, and the complaint filed for 33000.The query itself is absurd.Is it the same cheque for 30000 or another cheque for 33000.Kindly clarify before obtaining the opinion of the experts.

YES SIR THIS IS POWER OF CROSS , YOU HAVE TO READ EACH AND EVERY WORD OF NOTICE , COMPLAINT AND FRAME CROSS.

Light is white but when it is passed through PRISM  it is converted into seven different colors  which are totally contradictory with each other. THIS IS POWER OF CROSS, POWER OF DEFENSE.,POWER OF NEGATIVE WHICH IS PERPETUAL  AND ABUNDANT.

So it is easy to demolish any case by properly conducted cross examination of complainant and its witnesses., what ever may be  facts and circumstances of any case.

At what stage your client admitted !! On the first date or after charges are framed ?? 

all members, thank you very much for all your valuable advise, actually 3000 extra was charged for the legal fee of the complaintant advocates for issuing notice., so Rs 3000+ thiry thousnad for cheque amount totally thirty three thousand, my client admitted the offence in the first hearhing and he deposited the cash in the court and judge also insisted the complainant to withdraw the case as the accused was present with the cash on the first hearing itself, since compaintant advocate and compaintant is insisting on punsihment, the judge has retuned the money to me since i am the accused counsel and i returned it to the accused, since tha accused has accepted offence, and it is recorded, therefore i do have any defence here after, i can only drag the case as long as it can be done, that why i want to find is there any way that i could help my client.

please have a look on a case decided by hon'ble, if facts about notice, is similar to your case, it may be helpful to you, 

 THE SUPREME COURT OF INDIA

Criminal Appeal No. 767 of 2007 (Arising out of S.L.P. (Criminal) No. 3910 of 2006)

Decided On: 18.05.2007

Appellants: C.C. Alavi Haji
Vs.
Respondent: Palapetty Muhammed and Anr.

Hon'ble Judges:
K.G. Balakrishnan, C.J., R.V. Raveendran and D.K. Jain, JJ.

Dear Mr.Sripartha,

                                Your presentatioin of ur query was confusing. OK, So the cheque was presented for clearing for 33000.Other things do not matter.Don"t get dejected.There are certainly may ways in our Judiciary,which can be unearthed.You will certainly get proper guidance from the forum.But still consult a senior experienced Lawyer in your city and hand over the case,so that your client can be assured of some relief.No that the complainant is adamant in his approach,wait till he cools down.Try to drag the case as long as possible on some pretext or the other.It  is in ur hands.

The point is now you cannot contest, if you have admitted. For the judge following issues are present:

1. Convict your client with some fine.

2. Convict your client with fine & imprisonment.

3. Dismiss the complaint if charges not framed. 

There is a supreme court order which talks of value at the time of compounding proposal by the accused at any stage even at the appellate stage with Supreme Court, but this order is silent about the conviction aspect if complainant is adamant. In your case the matter is extremely in your favour as you have proposed to pay the money on the first date, the judge ought to have dismissed the complaint. Approach honorable HC under S.482 citing Supreme Court Order on compounding, and giving certain valid reasons about delay in payment from your side and mentioning some earlier irrationality of complainant. I  feel your client should not be convicted at all, punishment or no punishment, criminal conviction is bad.

It appears that the complainant is a modern day Shylock. Everything depends on the happenings between dishonour of the cheque and now. If no mala fide can be proven against your client, the Complainant can claim adequate compensation and nothing more. Please see whether mutatis mutantis Order XV "Disposal of the suit at the first hearing", and/or Order XII "Judgement on Admissions" of the Civil Procedure Code, 1908 can be applied in your case.

NI 138 is the criminal trial, there is no concept of compensation also, the offense is deemed to have been committed if drawer does not pay within 15 days of receipt of notice.

The admission doesnot give the liberty to get dischrages without penalty.

Regards,

Shonee Kapoor

harassed.by.498a@gmail.com

Were the steps (e) and (f), mentioned by Advocate JSDN, followed? Thereafter what was the immediate response of your client? Did he admit his mistake and offer to make good the loss to the complainant, or did he keep quiet until receiving the court notice? Though NI-138 is a criminal provision, under the circumstances the act of the accused can at the most be described as criminal negligence or a lapse (which is not criminal). Criminal negligence is punishable. But it will be so only if the accused made the offer to repay after receiving the court notice or at the admission stage. That was why I stated

“Everything depends on the happenings between dishonour of the cheque and now.”

NI 138 was introduced only a few years ago. It was intended against real cheats.