138 ni

Developers (Querist) 06 January 2014 This query is : Resolved
i need some expert advice please help.
i have been booked under 138 ni the complainant , by the PRL. CIVIL JUDGE AND JMFC , i was issued a hand summon and i appeared in front of the honorable court and took the bail as on 31-12-2013.
details of the case filed.

cheque issue date - 5-2-2011(as per complainent)
cheque returned date -11-2-2011(account blocked)
legal notice sent by complainent on - 1-3-2011
reply sent by my advocate - 31-3-2011
i never knew about this complaint that the complainant had filed .
PCR filed on - 18-04-2011(case disposed - uncontested)
First Hearing Date - 01-07-2011
Decision Date - 31-08-2012
Case Status - CASE DISPOSED
Nature Of Disposal - Uncontested--CLOSED

i got a hand summon on this case only.
again case filed by the complainant now says CC dated - 22-09-2012

about the case in details ..

about the case - 1. I have a criminal case pending for ipc420 , in which the police have issued the notice to the bank to block all further transaction and have also mentioned that in the seizure report of the complaint filed u/s 420 of ipc on 12-2-2010.

2. The cheque in question belongs to the same account which is blocked by the police .

3. the check has been reported stolen to the police on 10-06-2010 and the cheque number has been mention in the complaint statement along with the entire scenario under which these miscreants have forcefully taken the blank cheque . please not the cheque is blank does not contain a date or the amount mentioned in it. the same has been reported to the police and have given me an NCR copy of the acknowledgement and i also have the true copy of the complaint with me which i took under the rti act.

4. the complainant has been causing problems to me since a long time so i have obtained an injunction order against him way back in 9-2-2010 and issued a legal notice(the name of the complainant is mentioned in both legal notice and the injunction order).

5. the complainant says in his notice is as follows "yourself and my client are well known to each other since several years for you legal necessity and benefit of the family and business purpose you requested my client to advance a loan of rs 9lacs considering you request my client advanced a loan on rs 9lacs on 10-10-2010.that at that time of you borrowing the said loan you agreed to repay the same with in 4 months. that at the time of your borrowing the loan you issued a POST DATED CHEQUE I.E DATED 5-2-2011 FOR 9LACS BEARING CHEQUE NUMBER -051476 OF HSBC BANK believing your words my client has sent the cheque for clearance on the specified date and the cheque has returned with endorsement on 11-2-2011 to the effect "ACCOUNT BLOCKED"
---
please help me in this regards ,

let me know if the case is valid under 138 NI reason being
1. date of filing the complaint from the date of cheque is returned.
2. reason for return "ACCOUNT BLOCKED"
3. a PCR was disposed telling uncontested closed? i dont know what that means. and i was not aware of the PCR also.
4. the cheque under the complaint is already reported to the police and filed a report not an FIR but an NCR all details of the cheque have been mentioned in it filed date is 10-06-2010
5. civil suit & injunction orders have the name of the complainant in it also in 02-2010.
6. its a blank cheque no date no name written by me just the signatures are mine.

i request you to plz go through all the details and assist me as to what needs to be done.waiting for your replies . thanks for this wonderful opportunity the site has provided.

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Devajyoti Barman (Expert) 06 January 2014
The case is maintainable. Contest it.

Developers (Querist) 06 January 2014
thanks you for you quick response sir , i really appreciate your time. just one question,
1. the account from which the cheque is in question has been seized by the police and the account block notice is sent from the police in the previous fir filed against me in jan-2010, is it still possible to file a 138 ni when the account is seized by the court/police in previous criminal proceedings? please send me some ref or citations which can help me.

Devajyoti Barman (Expert) 06 January 2014
1. Yes if the cheque is issued before seizure of a/c.
Citations are not provided here.

Adv.Aiyer VLV (Expert) 06 January 2014
Case regisration possible
Cheque unpaid
Explain why your account froze and you couldn't arrange fund
through Advocate fight case

Developers (Querist) 06 January 2014
thank you so much such . please assist me with some details as to how i can go about this . the account was seized in 15-02-2010 the cheque in question is 05-02-2011 its almost a year how should i deal with this?
can i approach the high court for dismissal on this ground?
what can be the repulsive consequences?

also what does this mean.
Case Status - CASE DISPOSED
Nature Of Disposal - Uncontested--CLOSED

thanks you very much for your replies.

Adv.Aiyer VLV (Expert) 06 January 2014
Case regisration possible
Cheque unpaid
Explain why your account froze and you couldn't arrange fund
through Advocate fight case

Developers (Querist) 06 January 2014
hank you so much such . please assist me with some details as to how i can go about this . the account was seized in 15-02-2010 the cheque in question is 05-02-2011 its almost a year how should i deal with this?
can i approach the high court for dismissal on this ground?
what can be the repulsive consequences?

also what does this mean.
Case Status - CASE DISPOSED
Nature Of Disposal - Uncontested--CLOSED

thanks you very much for your replies.

Adv.Aiyer VLV (Expert) 06 January 2014
482 CrPc you can seek quashing

Adv.Aiyer VLV (Expert) 06 January 2014
It appears 138 NI Case disposed
IPC 420 criminal case is on
Apply.to court? HC to defreeze account
U need legal counsel for sure

Developers (Querist) 06 January 2014
can you send me few cases that have been quashed under these circumstances where the bank accounts of the accused were seized in previous cases pending. and the 138 has been quashed. plz help me .

Rajendra K Goyal (Expert) 06 January 2014
Citation is not provided in the section, search indiankanoon.com.

Developers (Querist) 06 January 2014
can you send me few cases that have been quashed under these circumstances where the bank accounts of the accused were seized in previous cases pending. and the 138 has been quashed. plz help me .

Devajyoti Barman (Expert) 06 January 2014
Dear querist you are repeating for same thing-citations which is not supplied here.
Please make your personal effort.

V R SHROFF (Expert) 06 January 2014
no citations provided here.

Adv.Aiyer VLV (Expert) 06 January 2014
Mr khan Developers
Few Q&A can't make you Lawyer.
Respect that noble persons where Give time
Respect the advice
Take legal help
Thanks seniors where who have valuable time and advice
Sure you will Thank again after u follow or regret for not following
your choice

R.K Nanda (Expert) 06 January 2014
nothing to add more.

T. Kalaiselvan, Advocate (Expert) 12 January 2014
I agree with the experts.

Advocate. Arunagiri (Expert) 12 January 2014
If you are an advocate, please consult a senior advocate of your area and get suitable advise.

ajay sethi (Expert) 12 January 2014
we dont provide citations .

DEFENSE ADVOCATE.-firmaction@g (Expert) 12 January 2014
Very recent earlier similar query I had told that even SC has not accepted the stolen cheque story in cheque bounce cases still some had suggested police complaint AND now this person had made police complaint so please suggest him now what he should do.

Quash of FIR is not simple and easy which is evident from very HI FI recent cases.

Regarding the problem the law is never ending process and no problem can be supposed to be solved in one or two answers.

From the recent views of the APEX COURT in many such cases:-

If payment could not be made or cheque bounced due to any reason it is the duty of the accused to make payment after receipt of notice and if notice not received within 15 days of receipt of court summons.

In other case SC has told even after acquittal in 138 case complaint can be filed under other sections of IPC.

SO THE ONLY POSSIBLE DEFENSE FOR ACCUSED IN SUCH CASES IS TO CONTEST ON i) LEGAL LIABILITY ii ) TECHNICAL FAULTS SUCH AS CASH LOAN, CAPACITY OF LENDER TO GIVE SUCH HUGE LOAN AND MOST IMP IS RATIONAL FOR GIVING SUCH HUGE LOAN.

A defense advocate should know all the possible steps the complainant can take and than find the way out. And defense is power of negative which is immense so suitable way can always be found out.

There are large no of citations on all above points and as suggested by others only expert local advocate can help.

138 ni

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