Case under 138 dismissed due to a/c blocked
DOWARKA NATH LOHTIA
(Querist) 10 October 2016
This query is : Resolved
I, along with my other family members had filed –10 , cases against M/s Kassa Finvest pvt limited , new Delhi under section 138,t/w 420 of IPC. The details of the case are as:-
1 M/S Kassa Finvest pvt limited, New Delhi,-- is a broking company authorised by SEBI/NSE/BSE –is authorized to deal on Stock Exchanges to deal in stocks and securities
2 M/S kassa Finvest is a private limited company with shri ASHOK KUMAR as its M.D
3 The share holders of this company are either family members of Ashok kumar, or companies form by him and his Son—were they are directors.
4 Wife of Mr Ashok kumar holds 54 % of shares while Ashok holds 5 % shares
5 I ,along with my family had a lot a stocks in our name with national stock holding, through M/s ALANKIT ASSIGNMENT , New Delhi.
6 We had been doing selling/purchasing of stocks and securities through various brokers since 1972 onward and had accommulated a good holding
7 M/S kassa approached me for with a proposal that I trade through Kassa Finvest. And offered to provide me/us trading facilities , without going through the daily/periodically exercise of making payments for our purchase/sale ---in forward trading provided we transfer our stock to his trading account---toward MARGIN MONEY..
8 He informed that our stocks will be safe as NO BROKER, call sell/dispose of our stocks---kept as margin, without our permission, as per SEBI/NSE R &R. This is legally permitted by SEBI/NSE.
9 I checked with other brokers and found and found out that this is correct band hence we transferred our stocks to his trading Account-----against which NSE is fixing his trading limits
10 NSE carries out regular check , for fixing his trading limits as well as period AUDITS to ensure safety of clients interest to ensure that there is no misappropriation by broker/s against the investors interests.
11 In July /Sept 2014,We came to know that a few complaints have been filed by investors for irregularities committed by broker, base on these complaints NSE closed broker’s terminal toward end Nov 2015
12 We approached Kassa either to return our stocks or pay us the market value of our stocks.
13 M/S Kassa Gave us chque/s –10 No , in first week of Dec 2014 , dtd 15-1-2015. , on the promise that – the cheque/s will be enchased after 15-1-2015, when he will be receiving funds from his oversea partner.
14 After 15-1-2015, We have been meeting ASHOK to find out the availability of funds for honouring his cheque commitment. But every time he requested us to wait for few days more.
15 After being fed up with his false promises we presented the cheque/s through our banker on 6-4-2015
16 The cheques were dishonoured on the ground that the “ACCOUNT IS BLOCKED”
17 It is learnet that , on the basis of various complaints received by SEBI---about 450 or so, SEBI, by it’s INTERIM order dated 19-3-2015 had BLOCKED his account ---based on criminallties committed by broker who had committed FRAUD on investors, INCLUDING HIS SON AND WIFE----COPY of interim order is available on net.
18 Since the cheques were issue much earlier on dated 15-1-2015---much earlier than BLOCKING of his ACCOUNT BY SEBI ON 19-3-2015., the cheque/s could not be encashed DUE NON AVAILABILITY OF SUSSICENT FUNDS” in the account
19 Had there been sufficient funds we would ha be presenter and encashed the cheques on 15-1-2015 itself.
20 WE had no control over the availably of funds in his account to meet his commitment.
21 We gave him a notice and then file case under section 138.’
22 At the initial stage it self, even before the framing of charges,--no written reply being submitted by the accused. The case was argued by accused, and had been” Dismissed”
23 The cases quoted by accused in his support are of Delhi H/and Apex court are
a) ONKAR NATH GOENKA vs GUJARAT LEASE FINANCE LTD –DCR 2010-1-328
b) KUSUM INGOT S & ALLOYS VS PENNER PETERSON SECURITIES AND OTHERS(2002)2SCC
c) VIJAY CHAUSHARY VS GYAN CHAND OF DELHI HIGH COURT.
We have applied for certified copies of order of MM
In the meanwhile we seek your learned opinion.
1 As the cheques were issued much earlier dated 15-1-2015 than the date of blocking of account on 19-03-2015, can we go for appeal as complainant has no control over blocking of his a/c.
2 As in case of cheque bouncing for insufficient funds ,the purpose of serving notice to accused to make payment within 15 days,clearly spells out that if sufficient amount is t available in a/c,the accuse shud make arrangement for meeting commitment either by depositing fund in a/c or make payments otherwise,from other sources.similarly in case of blocked a/c the accused has to prove that he had sufficient funds to meet commitment or make arrangements for payments.
3 Since the order is passed by MM,Tis Hazari, New Delhi , what is the appropriate court to file appeal
4 Are there any chances to win---probability?
5 Can you suggest any good lawyer At DELHI , who had dealt with similar cases and won, whom we can approach an consult to file the case
6 Can a few judgements of APEX COURT/HIGH COURT(specially DIVISION/FULL BANCH) uploading crimality u/s 138 admitting prosecution even if ACCOUNT IS BLOCKED be made available for ready reference.
Since we will be getting certified copy very soon, we will appreciate your response at the earliest, so we can start prepaing case well before the dead line.
Guest
(Expert) 10 October 2016
Dear DOWARKA NATH LOHTIA,
I really wonder at all the 6 of your questions!
When order has been passed by MM Tis Hazari, New Delhi, on 10 of your cases, naturally you would have hired services of some capable lawyer.
So, did not you ask him any of the following 6 questions, while all questions would have been replied aptly by him, as he was fully acquainted with the fine thread of your case:
1 As the cheques were issued much earlier dated 15-1-2015 than the date of blocking of account on 19-03-2015, can we go for appeal as complainant has no control over blocking of his a/c.
2 As in case of cheque bouncing for insufficient funds ,the purpose of serving notice to accused to make payment within 15 days,clearly spells out that if sufficient amount is t available in a/c,the accuse shud make arrangement for meeting commitment either by depositing fund in a/c or make payments otherwise,from other sources.similarly in case of blocked a/c the accused has to prove that he had sufficient funds to meet commitment or make arrangements for payments.
3 Since the order is passed by MM,Tis Hazari, New Delhi , what is the appropriate court to file appeal
4 Are there any chances to win---probability?
5 Can you suggest any good lawyer At DELHI , who had dealt with similar cases and won, whom we can approach an consult to file the case
6 Can a few judgements of APEX COURT/HIGH COURT(specially DIVISION/FULL BANCH) uploading crimality u/s 138 admitting prosecution even if ACCOUNT IS BLOCKED be made available for ready reference.
Since we will be getting certified copy very soon, we will appreciate your response at the earliest, so we can start prepaing case well before the dead line.
IF ASKED, what were the replies of your own lawyer.
BY THE WAY, when you want to know the particulars of a good lawyer, what you propose to do with the judgements of APEX COURT/HIGH COURT at your own level.
Moreover, why do you expect that the experts should waste their precious time and infrastructure cost to do the home work of your own paid lawyer?
Can you please intimate, if there is any specific reason to post your questions here instead of posing faith on your own lawyer?
Advocate Kappil Cchandna
(Expert) 10 October 2016
Mam,
Was the cheque bounced before the accounts were blocked?
Did you followed the mandatory procedure before you have file the case.
Warm Regards
Kapil Chandna Advocate
9899011450
P. Venu
(Expert) 11 October 2016
The matter requires professional consultation.
Rajendra K Goyal
(Expert) 11 October 2016
1 Cheque was bounced on presenting and on the date of presentation the account was blocked.
2 Cheque was bounced for the reason that the account was blocked and not due to the reason of insufficient fund.
3 What is the opinion of your lawyer? However, appeal need to be filed with session court.
4 Only astrologer can predict.
5 Every individual has his own definition of good lawyer, Delhi is having large no. of lawyers, you can search as per your preference.
6 Judgment / reference cases / ruling / citation / decided cases not supplied in this section.
