138 n.i. act
Querist :
Anonymous
(Querist) 14 December 2011
This query is : Resolved
A company gave a cheque for say Rs. 10 lakh which was bounced. The complainant realised some amount by selling the movable property pledged by the guarantors.
When a legal notice was received, the same was not replied.
Complainant filed a case u/s. 138 N.I. Act.
Complainant also separately filed a case for winding up. In the said petition, it was stated that against Rs. 10 lakh due it has received a sum of Rs. 600000/- and rs. 400000 with interest is recoverable.
In view of the above, whether the accused can plead that since the accused is not liable to pay Rs. 10 lakh but even as per the statement of the complainant (in the winding up) only 400000 is due, the complainant cannot sustain the complaint u/s. 138 N.I. Act against a cheque for Rs. 10 lakh.
The accused company wants to present the certified copy of the winding up petition filed by the complainant wherein the amount stated to be due from the accused is only Rs. 4 lakh, which is much less than the dishonoured cheque amount of Rs. 10 lakh.
The case is now posted for framing of charges since the company accepted having issued the cheque for Rs. 10 lakh.
Is it possible for the company to present the certified copy of the winding up petition filed by the complainant where the amount due is shown to be very less than Rs. 10 lakh, and to plead that the case be dismissed and the accused be discharged, since the accused does not owe Rs. 10 lakh, while the bounced cheque is for Rs.10 lakh?
If so, please indicate under what provisions of Cr.PC it can do so?
Nadeem Qureshi
(Expert) 14 December 2011
Yes, it is possible to filed certified copy of winding up petition before the court by accused company & case may be dismiss or the accused may be discharged if prove that the liability was only 4 lakhs & not 10 lakhs.
Read sec 245 Crpc
Nadeem Qureshi
(Expert) 14 December 2011
245. When accused shall be discharged.
(1) If, upon taking all evidence referred to in section 244 the Magistrate considers, for reasons to be recorded that the case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing, in this section shall be deemed to prevent a Magistrate from discharging he accused at any previous stage of the case if, for reasons to be recorded Magistrate, he considers the charge to be groundless.
STATE AMENDMENT
WEST BENGAL:
In section 245, after sub-section (2), the following sub-section shall be inserted, namely:-
"(3) lf the eviderice referred to in section 244 are not produced in support of the prosecution within four years from the date of appearance of the aecused, the Magistrate shall discharge the accussed unless the prosecution satisfies the Magistrate that upon the evidence already produced and for special reasons there is ground for presuming that it shall be in the interest of justice to discharge the aceused."
[Vide W.B. Act 24 of 1968 sec. 5].
Nadeem Qureshi
(Expert) 14 December 2011
138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid. either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice. to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless-
(a) the cheque has been, presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course. of the cheque as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.- For the purposes of this section," debt or other liability" means a legally enforceable debt or other liability.
V R SHROFF
(Expert) 14 December 2011
ANY CITATION THAT CR P C 245 IS APPLICABLE TO 138 CASES, AND ACCUSED WAS DISCHARGED? PL LET US SHARE!
Any case in your knowledge u/s 138 NI Act.
{Once Process is issued, either to go for Revision, against issue of Process, or complete the trial and get acquittal/ conviction/ or compounding.No other alternative available to accused in 138 NI Act.}
One cannot go for Dismissal, as there in no provision once process s issued. Only remedy in Trial & defense.
“”CASE MAY BE DISMISS OR THE ACCUSED MAY BE DISCHARGED””Any Citation?? "
Raj Kumar Makkad
(Expert) 14 December 2011
Though Nadeem has given his valuable time in support of his argument but the same is not found fit in the present case.
When the complainant issued notice to the company/accused, the due amount was Rs. 10 lakh though the complainant recovered Rs. 6 lakh by selling the other assets of accused and thus only Rs. 4 lakh remained to be recovered but 138 NI Act is not a suit for recovery rather this is a criminal case wherein when amount is not paid to its holder on receipt of notice within 15 days then offence is completed irrespective of deposit of entire money to holder thereafter.
Offence can be got compounded but there are no chances to get the case dismissed at this stage on the ground narrated in the query.
V R SHROFF
(Expert) 14 December 2011
I agree with Shri Raj Kumar Makkad.
Nadeem , there is no provision for Dismissal of 138 NI cases.
It is not a Police/ State case. It is Pvt. SCC case, and , what you narrated is for Regular Cri cases.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 14 December 2011
Yes Mr shroff is right section 245 is not applicable to private complaints.
NI 138 cases must be contested on technicals and any accused can come out of it.
Complete complaint is necessary to give exact advice.
ajay sethi
(Expert) 14 December 2011
i agree with experts that there is no provision for dismissal of complaint under section 138 Ni .
you ahve a good case on merits . you cna rely upon copy of winding up petition filed by complainant to show that oly rs 4 lakhs was due anad paybale and not rs 10 lakhs as alleged . ulimately you will be acquitted
Ajay Bansal
(Expert) 14 December 2011
Section 245 Cr.P.C. is applicable only in criminal complaints of warrant case, not in criminal complains of summary cases. A complaint u/s 138 N.I. Act comes under perview of summary case's trial. So there is no provision of discharge in this case on the basis of said said certified copies in question. However a case of finaly aquital is on cards on this base.
Querist :
Anonymous
(Querist) 14 December 2011
When a complaint is presented to a magistrate, he takes cognizance of the same on the basis of the contents of the complaint and proceeds further to examine the complainant and his witness, if any. After such examination, he may issue the process or postpone the issue of the same or dismiss the complaint.
The trial under Section 138 is a summons trial and the same has to be tried in a summary manner. There is no provision in the Cr.PC for recall of summons issued by the Court.
In K.M.Mathew v. State of Kerala AIR 1992 SC 2206 : (1992) 1 SCC 217, the Supreme Court has held that "Section 204 of the Code indicates that the proceedings before the Magistrate commences upon taking cognizance of the offence and the issue of summons to the accused. When the accused enters appearance in response to the summons, the Magistrate has to take proceedings under Chapter XX of the Code... It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled.
In SC Rastogi v. Renu Kalra (2002) 2 RCC 575, it was held that the power to drop the proceedings and to revoke the cognizance is vested in court if the accused demonstrates that no case against him is made out against him.
It was held in Premier Vinyl Florings Ltd. v. State of UP (1999) 4 Crimes 231 that, at that stage the accused can only place those documentary evidence which can be looked into without formal proof. However, if the matter requires evidence then, the matter would have to go to trial.
In view of the above, perhaps, you can produce the certified copies of the winding up petition before the Magistrate and plead for the recall of the summons and rejection of the complaint.
