SURAJ (Internship) 06 March 2012

Quash of nia 138

NI Act. 138, FACTS. A case filled by Miss. Priya against Mr. Harish, and magistrate take the cognizance and summon to Mr. Harish for personal appearance, but Mr. Harish allowed u/s 205, and then Mr. Harish take stay from the Mumbai High Court till next date, now Miss Priya trying to vacate the stay and Harish trying to quash the matter, detail case as below. As per Miss Priya’s demand notice she has deposited 50000.00 rupees to Harish account at Mumbai for his personal needs, (where Priya use to stay but her permanent resident is in Pune), for which Mr. Harish has issued a cheque to Priya at Mumbai for repayment of the said amount according to priya’s demand notice , but the cheque get dishonored due in sufficient fund and tampering of amount from Harish Account from Delhi, (where Harish use to stay) but (both are permanent resident of Pune) and Harish made a FIR against priya and her relatives that they have taken sum amount along with some documents forcefully from him, before a month of Priya’s cheque bounce, and police investigation is going on, According to Priya’s before S.D.J.M that she has deposited the amount to Harish account for supply of a Laptop, and also admitted that Harish is not engaged in any kind of Laptop Business, and she also cannot produce the deposit slip which Rs. 50000/- before S.D.J.M. According to Harish u/s 482 That the learned S.D.J.M of Pune after considering the complainant petition and the initial statement of the complainant (Miss Priya) recorded u/s 145 of N.I. Act by way of affidavit was pleased to take cognizance for u/s 138 of N.I. Act . For the learned court without following the mandatory provision of law as enunciated in Sec. 202 Cr.P.C. wrongfully took the cognizance of the offence which is liable to be quashed by Hon’bl High Court. According to principle of law that the learned court should insist strict compliance of statutory requirements in terms of u/s 200Cr. P.C. and the complainant is bound to make statement on oath as to how the offence has been committed and how the accursed person should responsible for commission of offence and in absence of same the order of cognizance passed by the learned Court below the is violation of Sec. 200 of Cr. P.C. for which the same is liable to quashed. ( Hon’bl High Court grant stay for next hearing, now Harish trying for quashing of the same) Other facts are. 1- Amount deposited to Harish account for his personal needs according to Priya’s Demand Notice which sent from Mumbai( has its Jurisdiction) 2- In complainant case before S.D.J.M. amount deposited into Harish account to supply a Laptop 3- And also admitted by the complainant (Priya) that accused is not engaged in any kind of Laptop business. 4- Cheque handed over to complainant at Mumbai (according to Demand Notice) but in complainant case it has handed over at Pune to complement. 5- No cheque return memo is presented before S.D.J.M and also stated that is not possible to produce. 6- No Deposited deposit slip presented before S.D.J.M and also stated that, it is also not possible to produce 7- Entire course of action arose not within one jurisdiction 8- Offence commented out of the Court 9- Complainant not able to submit any document supporting to Liabilities of her demand against accused (Harish) before S.D.J.M. 10- And the most important thing is complainant doesn’t know anything about the accused even she has no relation with accused but she deposited the amount with a good faith according to her confess at cross examination before S.D.J.M. Is there any judgment available supporting to above case, please provide me surajpradhan1978@gmail.com

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21 Replies

Shonee Kapoor (Legal Evangelist - TRIPAKSHA) 06 March 2012

I doubt that you can get readymade judgments on your facts.

try www.indiankanoon.org for searching relevant judgments.

Regards,

Shonee Kapoor

harassed.by.498a@gmail.com

SURAJ (Internship) 07 March 2012

Thank you very much sir, I am doing my internship with a law firm and I have been assign for collection of relevant judgment for above case.

M y question is, is there any chance for Harish to win this case?

Please guide me.

Shonee Kapoor (Legal Evangelist - TRIPAKSHA) 07 March 2012

I have already given you place where you can find.

Regards,

Shonee Kapoor

harassed.by.498a@gmail.com

R Trivedi (advocate.dma@gmail.com) 07 March 2012

5- No cheque return memo is presented before S.D.J.M and also stated that is not possible to produce.

Without return memo, court legally cannot take cognizance !! All other aspects before HC under S.482 are of trial based and HC may not quash but, Pt#5 as above is a mandatory requirement and HC may quash based on this.

SURAJ (Internship) 08 March 2012

Yes sir, but Miss, Priya has submitted her Bank statement,

Is there any chance that court may take cognizance on basis of her bank statement? I have discussed with one of my friend regarding and he said it is possible for court to take cognizance on basis of bank statement, is this true?please confirm me,

As you said without return memo, court legally cannot take cognizance!! Can you please provide me any judgment regarding the same, if you have?

And the most important thing is there were no legal liabilities payables for Mr. Harish and Miss Priya also admited that she has no evidence to produce before the court that she has paid the amount to Harish, she is just demanding the amount on basis of the that cheque, but i have already told you the cheque story in my above query.

Could please give me some ideas,

R Trivedi (advocate.dma@gmail.com) 08 March 2012

Miss Priya also admited that she has no evidence to produce before the cour....

She has admitted to whom ? You mean infront of court ? Generally lower courts do not apply much mind at the time of taking cognizance ? Thepoint is without the dishonor slip, how would the court know about dishonor and more imporantly if she can bring the account statement then why can't she bring the dishonor slip ?

SURAJ (Internship) 09 March 2012

Yes, in 1st cross examine she admit that she cannot produce any deposit slip or cheque return memo before the court. I think this return memo and deposit slip fact can play a big roll to quash the matter in High Court.

Shonee Kapoor (Legal Evangelist - TRIPAKSHA) 09 March 2012

The matter can end here in trial court irself.

Regards,

Shonee Kapoor

harassed.by.498a@gmail.com

R Trivedi (advocate.dma@gmail.com) 10 March 2012

Pl give an application under S.255 of CRPC for acquittal stating that in absence of this crucial evidence the case itself is non sustainable and further proceeding would be misuse of process of law. Discuss the matter with your advocate for preparation of proper application.

I still have not understood why the return slip cannot be produced ??

SURAJ (Internship) 11 March 2012

You are right sir, but I have discussed with my seniors and they saying bank statement is sufficient in absence of cheque return Memo. My seniors are asking me to bringing the judgment if there is any, I’m confused, but still I’m asking my seniors to considerds the part of section 255 and making application for acquittal. One more thing sir, where should we make the u/s 255 application as I stated above that, there is an interim stay at High Court, should we make application at High Court or junior court?

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE ) 11 March 2012

This is a summons case so you have to complete the trial.

Prepare for expert cross examiniation and you can come out of it.

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.

SAINATH DEVALLA (LEGAL CONSULTANT) 13 March 2012

.Dear Mr.Suraj,

First of all my appreciation for your determined effort as a junior.It is commendable.The seniors in your firm should be fully aware of the pros and cons of the said case.You said that Priya deposited 50,000/- in Harish account.That cannot be taken as an evidence.You are saying that the cheque got dishonoured due to insuficient funds and tampering of amount.That amounts to alteration of the said cheque by the person who presented it .The lower courts do not go deep into the technical aspects ,unless put forward by the defence.Lower courts geneally do not look into section 202 crpc.Has the high court granted stay of the proceedings or posted the matter to a further date.The defence advocate can demand the cheque return memo or ask the complainant to produce the bank statement duly attested by the concerned bank officer.The court should have asked the complainant to produce in the initial stage itself.Still Mr.Harish has a strong case to defend ,with intellegent handling of the case by your firm

SURAJ (Internship) 13 March 2012

Thank you very much sir for your appreciation, you are right sir, and my seniors are also very good and all are High Court practitioners, but I don’t know why they are stretching the case, I personally talk to Mr. Harish and Miss Priya’s advocate and got to know Miss Priya wants to put him into trouble, as you said it can be end at lower court, and my seniors are also assuring to Mr. Harish to not to worry and he will own the case, but one thing that I don’t understand why my seniors are not acting fast, taking date after date. Once again thanks to all of you and expecting the same contribution in future.

SAINATH DEVALLA (LEGAL CONSULTANT) 13 March 2012

Dear Mr.Suraj,

I have a small story fo you.One newly enrolled lawyer had won his first case and he was appreciated by all.He came to his father jubiliant,and told him that he had won his first case itself.His father who himself was a senior lawyer,instead of appreciating, in turn scolded him and said,idiot, for the past 20 years I have been running the family only because of that case,and today you have deprived me of income by winning the case.(THIS IS ONLY A STORY AND NOT TO HURT ANYONE)

So,Suraj be patient and don't get exited.Your senior lawyers must be confident of the case.