138 ni act
WHATSAPP 91-8075113965
(Querist) 16 July 2014
This query is : Open
SIRS,
I need your help sirs,
i am appearing in a 138 case for the accused.
Actually the accused is a Pvt Ltd Company.
so, the complainant has arrayed 4 persons as accused ......A1 is the company itself, in its official capacity....A2 is shown as "Director" of ....company.....A3 and A4 are two induviduals, shown as "cheif operating officer and executive vice president "....
in the complaint, it is avermed that A2 and A4 represented themselves as persons in charge of management of affairs of business and dealings.
No other document produced to prove this.. just a mere averment.
only A4 person signed the cheque.
case is that :
the was an oral business agreement between the accused and the complainant and the accused took 1 lakh as advance amount and subsequently failed to comply with the terms of the agreement. so the complainant
asked for the money he paid . the the accused gave a cheque , which subsequently
bounced. this is the case .
here, whether i can take the plea that cheque was taken as a security and hence 138 NI Act is not applicable, as per Bombay High court Citation ?
whether any witness is required for the payment of money in 138 cases ?
complaint has been filed against 4 accused , but, notice has been issued only against 3 persons .is it will vitiate the trial ?
( actually there are only 2 persons , other two persons are "legal persons"..ie, cheif operating officer" and "vice president. " )
these are the facts of the case ...
trial is fast approaching .....
so, please help me ....
PLEASE TELL ME WHAT ARE THE DEFENCES I CAN TAKE IN THIS CASE...
WHAT ARE THE POINTS I SHOULD HIGHLIGHT IN CROSS EXAMINATION OF THE COMPLAINANT ?
TELL ME APT CITATIONS ( PREFERABLY OF SUPREME COURT OR KERALA HIGH COURT ) SUITABLE FOR 138 CASE , AGAINST PVT LTD COMPANIES AND ITS DIRECTORS .....
THANKING YOU ALL IN ADVANCE , SIR, ....
SALIL KUMAR
ADVOCATE
THALASSERY
9447536929
9061435365
Nadeem Qureshi
(Expert) 16 July 2014
Dear Ld. Friend
as per your case it will be better to settle the matter amicably with complainant & pay the cheque amount. there is no defense which can be produce on behalf of accused.
V R SHROFF
(Expert) 16 July 2014
WE DO NOT PROVIDE citations .
WHATSAPP 91-8075113965
(Querist) 20 July 2014
i have heard that there are some special provisions which the complainant has to comply with , when the accused is a company and the matter is 138 NI Act .
so , i think, Mr.Nadeem and Mr.V R SHROFF may be totally ignorant about these provision or may be reluctant to help me .
i have heard about some citations . please discus these citaions .
1. N.K. Wahi Vs. Shekhar Singh, AIR 2007 SC 1454
2. National Small Industries Corp. Ltd. Vs. Harmeet Singh Paintal
3.A.K. Singhania Vs. Gujarat State Fertilizer Co. Ltd. & Anr.
4.S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89,
5. National Small Industries Corpn. Ltd. v. Harmeet Singh Paintal, (2010) 3 SCC 330
6.Harshendra Kumar D. v. Rebatilata Koley, (2011) 3 SCC 351
7. Mrs. Anita Malhotra Vs. Apparel Export Promotion Council & ANR. (Supreme Court)
8.Harshendra Kumar D. vs. Rebatilata Koley and Others, (2011) 3 SCC 351
9.Sabitha Ramamurthy and Another Vs. R B S Channabasavaradhya (2006) 10 SCC 581).
10.Makshud Saiyeed Vs State ofGujarat and others 2007 (11) SCALE 318
V R SHROFF
(Expert) 24 October 2015
"WE DO NOT PROVIDE citations ." IS A LCI EXPERTS'S POLICY
DEFENSE ADVOCATE.-firmaction@g
(Expert) 24 October 2015
you seems to be ignorant about the procedure of NI 138 trial and so is the many defence advocate who never conducted any successful cheque case trial.
1) First of all the cheque case is summons trial based on documents and it is not alike any other criminal case.
2) All the citations mentioned by you are have come after completion of trial and not earlier so no use of any of them during trial.
3) Apex court has recently specified short procedure for NI 138 cases So now an accused can not even move application u/s 145 for cross of complainant if what is the defence is not disclosed at first appearance.
It is being strictly followed at Delhi courts other court may not be following it now but they have to do it.
The main argument behind this procedure is that on first appearance if the accused accepts issue of cheque than all other defences does not have relevance.
Please go through very recent cases of apex court rejecting security cheque theory.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 24 October 2015
Well it does not mean you can not win any cheque case but not on citations.
Once you accept the cheque, liability, and notice may not to all but to some of them the basic opportunities of defence are gone.
Study the complaint the documents and pleadings.
Conduct cross to confuse and contradict the complainant on pleadings and documents.
Defence advocates must plan the questions and sub questions well in advance and should rehearse many times before actually asking them in court.
Our advocates do it regularly and win the cheque cases hands down.
