Sec.138 of n.i.act
Querist :
Anonymous
(Querist) 17 December 2011
This query is : Resolved
Dear Friends,
I have appeared in a case U/s.138 of N.I. Act for the accused. The fact in brief of the said case that the alleged cheque was issued by the Director of one Pvt. Ltd. company with the signature of accused as the Director but after dishonoured of cheque the complainant issued the demand notice to the accused in his personal address not being the Director of the company nor issued any notice to the company and thereafter the complainant filed the case against the accused personally without making the company as a party to this case and also not taken any averment in his complaint petition that the accused is the Director of the Company and sole responsible for the day to day affairs of the said Company.
Now I want to know i) whether the said case sustained against the name of accused personally? ii) whether the company must be a party to the case or not? If yes or no, then please guide me with the latest decisions.
V R SHROFF
(Expert) 17 December 2011
IF CHEQUE issued from Bank a/c of Company, and accused Signed for and on behalf of the Company, as a Director of the Company, you have very good defense.
Search at the cost of Company, latest 138 citations in your Law Library or CD, relevant to your case.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 17 December 2011
Cheque cases are won or lost on technicals. Your defense is week since recent SC judgement the issuer of cheque is convicted.
Find other lapses.
Power of defense is immense since it is power of negative. Darkness is perpetual , light has to be sustained.
Shonee Kapoor
(Expert) 17 December 2011
Agreed with Shroff.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Advocate Bhartesh goyal
(Expert) 18 December 2011
It is immaterial that the complainant has not issued the notice to company and also not made party in complaint.Your client had issued the cheque against the liability or debt of company so he can not escape from the penal provisions of Act.
Advocate. Arunagiri
(Expert) 18 December 2011
No notice needed against the company, no need to include the company as a party in any criminal case.
But, before convicting the director of that company, there must be a findings that company had made offense.
Company acquitted, Director can not be convicted.
Anil Hada v. Indian Acrylic Limited [2000] 23 SCL 240, 2000 AIR SC 145.
The provisions do not contain a condition that prosecution of the company is sine qua non for prosecution of the other persons who fall within the second and the third categories mentioned above. No doubt a finding that the offence was committed by the company is sine qua non for convicting those other persons.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 18 December 2011
Even inspite of the above SC citation the question of no pleading about the co in the complaint is a fatal mistake, so even co is not a party and in spite of above judgement it is big mistake and accused will certainly benefit from it.
Hear again clever cross will help since power of defense is immense.
