Please help me in 138 ni lower court judgement

This is nice argument of your own on the case. Would be great, if you give simple facts of the case without bringing into the judgement of the court. Have patience, believe in SATAYMAEV JAYATE. State facts of the case we all will support you with appropriate advise.

Milind chandurkar vs Kalim  khans is very specific and clear citation, it seems your advocate did not frame proper pleadings so  the mischief of this citations.is attacted.

 

Get a very experienced advocate for move further  since it will need very clever steps.

your advocate more care full to establish foundation of case

Ground No.1 is that you are neither the payee nor holder in due course of the cheque. Can you elaborate why the court held so. On whose name the cheque was drawn? Was there any defect or ambiguity in that?

My proprietorship concern mentioned on the cheque.

dear friend

you can go to high court and invoke section 482 of crpc as there is miscarriage of justice and with the result the justice is defeted. pray for denova enquiry [fresh trial]

please note that the payment bank only dishonoured and as such the cause of action rises there. the complaint must be filed only with the court having jurisdiction over the payment banker despite the fact the cheque is multicity.

please also refer the latest full bench decision of hon,ble supreme court on cause of action and jurisdiction in filing the case. it is retrospectively valid.

regards

sowrirajan advocate high court of judicature madras

total dismay, total negligence by prosecution thinking that dishonored cheque is in hand and thats all is required.....and then they loose and cry hoarse.

 

1. First of all appeal against acquittal lies with HC with SLP, not with session court.

2. Grounds

Gr 1 : is correct, prosecution must prove its status,  a bald statement in the affidavit that we are sole prop or pvt limited or partnership, many a times backfires if not supported by evidence. Every complainant must prove its bonafide.

 

Gr2 : Is a question of fact, if your notice and MOU is having contradiction then benefit would go to accused only. Your Ld. lawyer should have been careful...you also cannot remain blind that everything done by my lawyer will be fine...there could be professional slips.

 

Gr3: Total negligence by you and your lawyer, it is so pathetic that you have failed to prove the dishonor itself. When it was the matter of Rs 25 Lacs, then you could have gotten the dishonored slip stamped from the bank, your lawyer could have called the Bank to prove the dishonor (although not required).

 

You are to be blamed for this fiasco. You may attempt something wrt to Gr1 and Gr3 with HC if you decide to appeal, Gr2  cannot comment without seeing further details.

 

 

Adv P Sowrirajan

 

What is this S.482 once the accused has been acquitted ??? The proper procedure would be a normal appeal to HC as per law...and what is this jurisdiction issue for this case ??

 

 

I think you just typed something without understanding the matter in hand.

Ground No.01 This is purely a technical point. Probably the accused had issued the cheque in the name of your firm and you filed the complaint in your personal name. When you filed the case in your personal name along with Xerox copy of the cheque and the name on the cheque was not your name, the judge should have asked you the question in the initial admission stage and dismissed the case at the outset itself without unnecessarily wasting the valuable time of the court. That would have given you a chance to submit your complaint again with appropriate correction. I suspect why the judge did not do it at the outset itself. Or at least it should have been claimed so by the accused or pointed out by the judge during the process itself. What you would have needed to do was to file the complaint in the name of the firm along with proof of existence of such a firm and that you are the proprietor of the firm. If you have a registration certificate you can submit that. If you have a bank account in the name of the firm showing you as its proprietor and authorised signatory that also is enough. If you are filing income tax returns in the name of the firm along with the verification statement that also should be sufficient. Ground No. 02 This is a usual mistake that lawyers make because they have only second hand knowledge of the case of their clients. Further your lawyer was careless and you kept blind faith in him. Did the accused claim that it was an investment? Under Section 139 the judge has to presume that the cheque was issued in discharge of a liability and it is for the accused to prove that it was not. If the accused had claimed that it was an investment and your lawyer had not rebutted the claim you could have a problem. Even then the following have to be considered. Does XYZ Ltd belong to you? In any case your firm has given money to the accused. The purpose for which it was given is immaterial unless you yourself are making an investment in your own name or in the name of the company. It appears the judge has no knowledge of commercial dealings and hence thinks that it was not for discharge of a liability. If A gives a loan to B and B invests with C, still B has liability towards A. What was to be considered was not why you gave him a cheque in the first instance but why he should have given you the cheque later. What is the business of your firm? Is it a finance company that takes investments from the public in the form of fixed deposits or in any other manner? If the accused had given you the cheque as, say, as a fixed deposit in your firm, then if the cheque bounces you can simply undo the transaction by unilaterally cancelling the fixed deposit. It will not attract NI-138. The word “discharge of liability” is heavily loaded with meaning and where it really exists it is very difficult to disprove. Also the burden of disproving it is on the accused and not on the judge. Ground No. 03 One way of arrangement is as follow. If a person issues a cheque and if enough amount was not available in the account he may arrange for a temporary overdraft facility to cover the cheque amount by depositing securities or additional securities with the bank. If the cheque amount exceeds even such arrangement, bank will issue a memo ‘exceeds arrangement”. The drawer of the cheque is liable if the cheque is returned with remark ‘exceeds arrangement’ also under Section:138. In these days of computers and emails issuing memos without signature is usual. If the court insists you can take the memo to the bank and get their signature and seal. If the cheque amount exceeds Rs.10,00,000/- it is for the bank to return it for that reason. When the bank has not stated that as the reason why should the judge worry about it? Further if things like exceeding arrangement or exceeding Rs.10,00,000/- etc occur it is for the accused to take remedial action when he receives notice, as required under law, from the complainant. If he doesn’t act it shows he is not honest. It is for this purpose the law says that the Complainant should give notice to the accused to pay the amount, so that if he were really honest he could paid the amount and settle the matter. I am not a lawyer and all that I have written above are based on plain common sense. I do not exactly know whether you can file the case again making the necessary corrections or you have to go on appeal. The amount involved is large and I very much suspect that things are happening behind the scene. Your present lawyer has failed you miserably. As it is a large amount I suggest that you engage a very good lawyer.

There is a small problem in common sense line of thinking with the law....no doubt common sense is very important in deducing....problem is that in general do not engage in the case...there is no manifestation that trial is being conducted intelligently...and hence all sort of papers get piled up, most of them remain unproved, litigant feels that paper is on record or he has conveyed the story so the judge should act on that...finally when he realizes that all is waste because proper procedure is not followed...its mockery

I do not understand what is the connection between the alleged problem with common sense and what is stated by advocate Trivedi. I again say that plain common sense is very often lacking in court proceedings. Slips and omissions are different matters.

Again I say that I am not a lawyer. Still it is not difficult to know that in the very first paragraph in an affidavit one should first introduce oneself and then state how one is competent to file the case. If the judge doesn't find those sentences or does not agree with what is stated, he should not proceed with the case. Here the judge has gone through the entire process and finally stated in the judgment that the Complainant was not competent to file the case. This is like listening to Ramayana for the whole night and ask in the morning whether Rama was the uncle of Sita.