Dishonour of Cheque
Querist :
Anonymous
(Querist) 05 March 2010
This query is : Resolved
Sir I have a small query relating to my case.
Accused had a business of supplying goods to 'A'. Accused was given advance money to procure goods and accused gave 'A' a blank cheque as security.
B took the cheque collusively. Filled in the blanks. Cheque bounced. 'B' Complainant after issuing notice filed criminal complaint under section 138.
The complainant (B) only stated that accused opwned him money, and to repay he issue the cheque with figure of amount.
'A' had no transactions as business relation with the complainant (B).
Accused has already been conviction and presently appeal is pending for disposal.
Kindly advice and if possible give some citation / judgement in favour of the Accused (Defence).
Kindly treat this as most URGENT.
A V Vishal
(Expert) 05 March 2010
Recently The Mumbai High Court, Aurangabad Bench has held that prosecution u/s.138 of the N.I.Act cannot be started in case the cheque is held for Security purposes.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 898 OF 2009
Ramkrishna Urban Cooperative
Credit .. Applicant
Society Ltd., Maliwada, Ahmednagar,
through Authorised Signatory,
Shri Chhagan Tukaram Raut,
Age. 36 years, Occ. Service,
R/o. Mutha Chambers, Maliwada,
Ahmednagar.
Versus
Shri Rajendra Bhagchand Warma .. Respondent
Age 38 years, Occ. Business,
R/o. 2044, Daware Galli,
Near Vithal Mandir, Ahmednagar.
Shri L.B. Pallod, Advocate for the applicant.
Shri J.M. Murkute, Advocate for sole respondent.
CORAM : P.R. BORKAR,J.
RESERVED ON : 03.02.2010
PRONOUNCED ON : 16.02.2010
Guest
(Expert) 05 March 2010
I do agree.
B K Raghavendra Rao
(Expert) 06 March 2010
Sri A. V. Vishalji's citation holds good only if the fact that the cheques were given as security cheques even before the debts existed was established in the trial court and proved beyond doubt. Otherwise, it will not come to accused's aid. In the cited case, the legal liability had already been repaid and it was proved beyond doubt the cheques were issued even before the liability arose.
Normally appellate courts look at accused with suspicious eyes unless some gross error of points of law are committed by lower court.
Your could be advised only after the case is studied in detail with regard to observance of law, appreciation of witnesses etc.
If a person issues cheques as security towards the loan borrowed by the principal borrower and if the borrower fails to pay the loan amount, can there be no cheque bounce case under Section 138?
