Mismatch sign

No! mismatching of sign is not included in 138. Send notice, Requesting to your client to issue fresh cheque, with such facts . If he deny file a recovery  suit.

Respected Sir,

Apparently mismatch sign is not covered under section 138 N I Act. But If you are sure that the person who has given the cheque, the said cheque is signed before you or before your representative ie. you are sure that he issued cheque in different sign so that that should be returned by the bank with such sign, he can be prosecuted u/s 420 IPC. And the reason given in memo is also not final one, if the amount is also insufficient in the bank a/c,  on the date of return memo, he can be prosecuted for u/s 138 also. So if the cheque is singned by the drawer himself and on the date of presentatin of the cheque, there is not sufficient balance, he can be prosecuted u/s 138 N I Act and u/s 420 ipc in one complaint itself.

Respected Sir,

Apparently mismatch sign is not covered under section 138 N I Act. But If you are sure that the person who has given the cheque, the said cheque is signed before you or before your representative ie. you are sure that he issued cheque in different sign so that that should be returned by the bank with such sign, he can be prosecuted u/s 420 IPC. And the reason given in memo is also not final one, if the amount is also insufficient in the bank a/c,  on the date of return memo, he can be prosecuted for u/s 138 also. So if the cheque is singned by the drawer himself and on the date of presentatin of the cheque, there is not sufficient balance, he can be prosecuted u/s 138 N I Act and u/s 420 ipc in one complaint itself.

Yes I agree he can be prosecuted under 420 IPC.

you can chose either 138 of NI Act or 420 of IPC but not both in a single complaint as suggested by Mr. Madhu Mittal.

View the file attached here.

It is easy to allege but difficult to prove in court.

Respected Sir Arvind ji,

 I agree that recovery suit can be filed in addition to one complainant u/s 138 and u/s 420 IPc.

Respected JSDN ji,

I agree with you to prove in court not an easy work, in our case it took almost ten years in trial court it self.

Respected Sir Sridhar,

After already going through the citation, cited by you, it was suggested that  both offence u/s 138 and  u/s 420, should be in one complaint, otherwise this citation will be applicable. Now as I have read that a person should be punished for all his offences. As you are suggesting only one charge, it means he is exonerated automatically for another charge, that is not the law. We have got convicted a person in one single complainant for both the offences u/s 138 and u/s 420 IPC. The reason of bank return memo is “second signature required”, the cheque is of partnership firm and it was issued by one partner telling us that the cheque can be passed even with his single signature. We filed complaint for both the offences. We got examined the bank manager of  accused bank through court order, he told that cheque can not be passed with single signature and there is no sufficient balance in the a/c of accused on the date of presentation of cheque. So the accused was convicted  for both offence in single complaint. The case name Maloo Finvest Services p ltd V/s Kamal Yadav, partner, Surya travels no. 1051/2002 in Court of Upper Chief  Judicial Magistrate, S. No. 8, Jaipur metro, Jaipur case is decided on 08.12.2011 by court.

Please have a look on the below citations, you may agree with me:

1. MANU/AP/0813/2010

IN THE HIGH COURT OF ANDHRA PRADESH

CRL. R.C. No. 1937 of 2003

Decided On: 09.11.2010

Appellants: Bommidi Madhu Sudhanrao
Vs.
Respondent: Kallapu Ramesh and Anr.

2. MANU/AP/0119/2001

Equivalent Citation: 2001CriLJ1489, 2001(1)ALD561

IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD

Crl. P No. 556 of 1999

Decided On: 25.01.2001

Appellants: OPTS Marketing (P) Ltd. and others
Vs.
Respondent: State of A.P. and another

3. MANU/DE/0191/2009

IN THE HIGH COURT OF DELHI

Crl.M.C. 2053/2004

Decided On: 09.02.2009

Appellants: R.P. Mathur Prop. Radhika Leather Fashions
Vs.
Respondent: S.R.P. Industries Ltd.

4. MANU/SC/0045/2000

Equivalent Citation: AIR2000SC754, 2000CriLJ824, JT2000(1)SC360, 2000(1)SCALE271, (2000)2SCC636, [2000]1SCR417, [2000]100CompCas613(SC),2000(2)CTC107

IN THE SUPREME COURT OF INDIA

Crl.A. No. 91 of 2000 (Arising out of SLP (Crl.) No. 1998 of 1999)

Decided On: 28.01.2000

Appellants: G. Sagar Suri & Anr.
Vs.
Respondent: State of U.P. & Ors.

With regards.

Please read from the citations quoted by you=

A criminal complaint under Section 138 of the Negotiable Instruments Act is already pending against the appellants and other accused. They would suffer the consequences if offence under Section 138 is proved against them. In any case there is no occasion for the complainant to prosecute the appellants under Sections 406/420, I.P.C. and in his doing so it is clearly an abuse of the process of law and prosecution against the appellants for those offences is liable to DC quashed, which we do.

Respected JSDN ji,

Please ALSO read from the SAME citation quoted by ME:

13. In the circumstances of the case in hand conclusion is inescapable that invoking the jurisdiction of criminal Court for allegedly having committed offences under Sections 406/420, I.P.C. by the appellants is certainly an abuse of the process of law. In the counter affidavit filed on behalf of the complainant it is now admitted that none of the two appellants is a director of Ganga Automobiles Ltd. Only in respect of the first appellant it is stated that he is the authorised signatory of that company and that in fact he had signed the cheques which were returned dishonoured. Apart from making the omnibus statement that the first appellant with dishonest intentions and misrepresentations got loan of Rs. 50,00,000/-from the complainant company for Ganga Automobiles Ltd. there is nothing said as to what were those misrepresentations arid how the complainant company was duped. The only part attributed to the second appellant is that the first appellant along with Ashwani Suri, Managing Director and Mukender Singh, Director approached the complainant in June, 1996 arid had represented that they and Shalini Suri, Shama Suri (Appellant No. 2), Charanjit Singh and M.L. Kampani were the Directors of Ganga Automobiles Ltd. There is nothing stated in the counter affidavit about the role, if any, played by the second appellant. A complaint under Section 138 of the Negotiable Instruments Act has already been filed by the complainant. There is no allegation of any corrupt practice by any of the accused as if they duped the Finance Company in parting with the amount of Rs. 50.00.000/-. As normally understood business of a finance company is to invite deposits, pay interest on that arid also to give loans and earn interest. A finance company also advances short term loans. In that case it is essentially a commercial transaction. After first two cheques were dishonoured two cheques were again issued, which again were dishonoured resulting in filing of complaint under Section 138 of the Negotiable Instruments Act. None of the respondents has been able to explain as to why offences under Sections 406/420, I.P.C. were not added in the complaint filed under Section 138 of the Negotiable Instruments Act and why resort was had to filing of a separate First Information Report.

Respected JSDN ji,

please let me know, what is your opinion now, whether a single complaint can be filed for both offence u/s 138 N I Act and u/s 420 IPC or not .

No becaue you have to read the citation as a whole also the other citation above submitted by another LD friend.

Respected Sir Sridhar ji,

please let me know, what is your opinion now, whether a single complaint can be filed for both offence u/s 138 N I Act and u/s 420 IPC or not .

Respected Sir JSDN ji,

Please let us know, what to do, when a person committed both offences regarding same cheque u/s 420 IPC by singing the cheque in a manner different from his specymen sign in bank, knowing very well at the time of issue of cheque, that it will be returned and u/s 138 NI Act when the manager of accused bank gives evidence that drawer does not have sufficient balance at the time of presentation of the cheque, how to get him punished for both the offence or in your opinion, the accused should be exonerated automatically for one offence even withont trial where the punishment for both the offences are different u/s 420-it is upto 7 years and u/s 138-it is upto only two years.

Dear

Follows the Mr. Sridhar & ISDN.

Respected JSDN ji,

please let me know, what is your opinion now after going through the citation below mentioned, whether in your opinion, this citation is correctly decided or not.

MANU/SC/0848/2000

Equivalent Citation: 2001CriLJ121, JT2000(8)SC502, (2000)9SCC539, [2000]102CompCas442(SC)

IN THE SUPREME COURT OF INDIA

Petition(s) for S.L.P. (Crl.) No. 1722 of 2000

Decided On: 03.04.2000

Appellants: Prudential Capital Mkt. Ltd. and Anr.
Vs.
Respondent: State of Bihar and Ors.

Hon'ble Judges:
G.B. Pattanaik and U.C. Banerjee, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: M.P. Jha, Ram Ekbal Roy, Ashok K. Thakur and Anil K. Chopra, Advs.

Subject: Commercial

Subject: Criminal

Prior History:
From the Judgment and Order dated 27.08.1999 in CRLM 8403/99 of the High Court of Patna)

Disposition:
Petition dismissed

JUDGMENT

G.B. Pattanaik, J.

1. Delay condoned.

2. An order of cognizance taken by the Criminal Court under Sections 420, 120B I.P.C. as well as Section 138 of the Negotiable Instruments Act not having been quashed by the High Court on an application being moved under Section 482 Cr.P.C. the present application has been filed in this Court.

3. We see no provision under the Reserve Bank of India Act which prohibits any criminal proceeding to be continued. The provision of Section 58(E) bars taking cognizance of offence committed under the said Act, namely, Reserve Bank of India Act. The power of Company Law Board under Section 45-QA of the R.B.I. Act, as amended, does not in any way take away the power of the criminal court to continue with the criminal proceedings.

4. In course of his arguments, the learned Counsel points out that several High Courts have stayed the criminal proceedings. We do not know under what circumstances, the High Courts have stayed the criminal proceedings, nor any provision has been shown to us. Be that as it may, we are not inclined to interfere with the impugned order. The Special Leave Petition stands accordingly dismissed.

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