Ni 138 ..chq returns
Querist :
Anonymous
(Querist) 14 January 2012
This query is : Resolved
I have to deposited 9 chqs ..
case ........ if they all get returns
how may legal case i have to file 1 or 9
1. if all the chqs depostied in single day
2. if all the chqs deposited on different dayd.
Deepak Nair
(Expert) 14 January 2012
1. If all the cheques are deposited on a single day and the said cheques bounces toghether, you can file a single case for all the 9 cheques.
2. If the cheques are deposited on different dates:-
if the difference in date of dishonour of the 1st cheque and last cheque are less than 30 days, then you can issue one notice for all the cheques and file one complaint for all the cheque.
The law prescribes to send notice within 30 days of dishonour. Number of cheques are not a force determining the complaint. It is the time frame provided in the Act.
V R SHROFF
(Expert) 14 January 2012
Deepak,
I found that it is a better trick to file separate cass , say at least 3 diff v cases for 9 cheuqes
Reasons
1] Accused had to find as many surety as the cases there, and to get bail is a difficult, Now adays nnobody have time to go for a full day to Court, Deliver Ration Card, Agr Papers etc, and take that liability of a "KADKA" man who could not pay someone's money.
2] Accused had to be present on all 3 Different dates, not Comp. He faces Warrant, if remains absent.
3] You can improve upon the Prosecution, and fill in the lacuna of Prosecution, as well prepared for such Reply of Accused in earlier Cross of Compl/ Accused, So your Last Complaint becomes Water Tight. Though -ve points are there, You get Two more opportunity at no extra cost. .
I even prefer diff Courts, Diff Jurisdiction, or create it.
Think it over.
Deepak Nair
(Expert) 14 January 2012
Sir, in 138 cases, not all the courts ask for surety.
In most of the cases accused are released on PR Bond.
Advocate. Arunagiri
(Expert) 14 January 2012
I suggest to file 9 cases. It will be a harassment to the accused, then only he will come for a compromise.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 14 January 2012
Criminal P.C. 1973, Ss.205 & 317 - The Magistrate can allow an accused to make even the first appearance through a counsel - Even before execution of bail bond, for sufficient reasons, the accused is entitled to apply for exemptions from personal appearance.AIR 2001 SC 3625 & 1989 Crl. L.J. 523 Followed
V R SHROFF
(Expert) 14 January 2012
Deepak,
In Mumbai majority MM grant Cash Bail
In Thane, all 138 had to get Surety, Bail, but allow PR Bond for few weeks,,
In Gurgaon, Bhopal , ad other outside Court, They want outsider be bound by Local Surety Only, or not released on any pr or Cash!!
All Court had their own Rules.
So suggested Diff Locations, for Maximum Harassment to accused. He is bound to Engage local Advocate (Say At Gurgaon nr Delhi) He is bound to Appear. In one of my case at Rajsamand, (RAJ) u/s 138, the whole Bar Advocates commented on me " Shroff saab, why did you come from Bombay for 138 accused?? In our Court out of 10,000 accused, none was Acquitted. You are wasting your time.
Both the case I won, only in 2 hearing. The whole bar Sr. advocate were listening very carefully my arguments for 3 hours. & appreciated the Defense, with over 60 citations on all my defense points. The First case. accused acquitted.
Why I narrate this story, is to get u informed of the advantages, compl get, when files Compl at diff location.
In one case i Know at Mazgaon Court, a Teacher convicted was punished for [Till the end of Court} 3 hrs that too in Court Premises, before 8 months. Very Lenient Judge.
In Borivali, Esplanade Court etc, one ger Dates of 6-10 months, and in Dadar, accused will had it.!!
In Andheri Court, J Shrama collected 12 Cr. as penalty for adjournments from Accused. , in a year as lots of Vehicle Loans walla at Andheri East)
So all Court Procedure, Penalty Differs.? Why should we put all eggs in same basket??
M/s. Y-not legal services
(Expert) 14 January 2012
YOU CAN FILE A SINGLE CASE FOR 9 CHEQUES.,
OR AS SUGGEST BY ARUNAGIRI SIR., YOU CAN FILE 9 SEPARATE CASES..
-TOM-
Sushil Sharma
(Expert) 14 January 2012
9 cases are the best way and also agreed with the view of Mr. Shroff
Raj Kumar Makkad
(Expert) 14 January 2012
Separate complaint for each case is required to be filed. Cheques cannot be clubbed. All experts please go through the following citation:
MADRAS HIGH COURT
SURYAKANT V. KANAKIA
VS
V. MUTHUKUMARAN
 Honourable Judges: Mrs. R. Banumathi J
 Act: Negotiable Instruments Act, 1881 - Section 138, Criminal Procedure Code 1973 – Section 313, 255(1), 219, 218
 Delivered on: 10/02/2004
 Case No: Criminal Appeal No.829 of 1996
Issue Involved:
Whether complaint under section 138 is bad in law if more than three cheques are clubbed together in a single complaint?
Held
No. Section 219 of Cr.P.C is not mandatory requirement and only a procedural aspect. Since one single complaint has been issued clubbing all the cheques together, a single complaint clubbing all the cheques is legally maintainable.
JUDGEMENT
The complainant in C.C. No. 9577 of 1991 is the appellant. Aggrieved over the order of acquittal of the respondent/accused under section 138 of the Negotiable Instruments Act by the 5th Metropolitan Magistrate, Egmore, Chennai (by judgment dated March 22, 1993), the appellant/complainant has preferred this appeal.
The relevant facts for disposal of this appeal could briefly be stated thus : On March 18, 1991, the accused has availed of a loan of Rs. 20,000 from the complainant. He has agreed to repay the same with interest at the rate of 30 per cent, per annum. For repayment of the said amount, the accused had issued 11 cheques on various dates between May, 1991-August, 1991, drawn on the Standard Chartered Bank, N.S.C. Bose Road, Chennai. When the cheques were presented for collection in UCO Bank on August 30,1991, by the complainant, all cheques were dishonoured on September 2, 1991, with endorsement "payments stopped by the drawer". The complainant sent a legal notice dated September 5, 1991. The accused received the same on September 9, 1991. But he has not made arrangements to repay the loan. The complainant has filed the complaint under section 138 of the Negotiable Instruments Act for nine cheques.
The accused appeared before the trial court. Copy of the complaint was served upon him and gist of charge was explained to him. On being questioned, the accused denied the charge framed against him. To substantiate the charge against the accused, Suryakant V. Kanakia/complainant was examined as P.W.-l and six documents were marked on the complainant's side. The accused was examined under section 313 of the Code of Criminal Procedure about the incriminating evidence and circumstances. During questioning under section 313 of the Code of Criminal Procedure, he has stated that he had borrowed only Rs. 10,000 and he repaid the same and got back two cheques from the complainant out of 11 cheques given by him to the complainant. The accused also stated that he had sent reply to the notice on September 20, 1991. Further case of the accused was that the complainant deliberately did not return the documents pertaining to the loan.
Upon consideration of the evidence and the defence version, the learned magistrate found that in view of section 219 of the Code of Criminal Procedure, filing of single case clubbing nine cheques is not maintainable, has acquitted the accused under section 255(1) of the Code of Criminal Procedure. Aggrieved over the acquittal, the complainant has preferred this appeal.
Learned counsel for the appellant/complainant contended that the trial court erred in applying section 219 of the Code of Criminal Procedure to the proceedings under section 138 of the Negotiable Instruments Act and finding that more than three cheques cannot be clubbed together. Assailing the rinding, learned counsel further submitted that the parties went on trial and the accused was explained of the charge and also questioned under section 313 of the Code of Criminal Procedure and when no prejudice was caused to the accused, the trial court erred in acquitting the accused and urged for reversal of the acquittal.
Reiterating the findings of the trial court, learned counsel for the respondent/accused made his submissions on the non-maintainability of the complaint and contended that more than three cheques cannot be filed in a single complaint and the learned magistrate has rightly dismissed the same applying section 219 of the Code of Criminal Procedure. On the amount payable by the respondent/accused, it is submitted that a civil suit was already filed against the respondent/accused and in execution of the decree, E. P. No. 1194 of 1997 is pending on the file of 10th Assistant Judge, City Civil Court, in which the respondent/accused has already paid Rs. 52,000 and in that view of the matter, the order of acquittal is not to be reversed at this distant point of time.
Upon consideration of the submissions by both sides, the judgment of the trial court and other materials on record, the following points arise for consideration in this appeal :
(i) Whether the trial court was right in saying that dishonour of all the cheques cannot find a place in one complaint ?
(ii) Whether section 219 of the Code of Criminal Procedure is mandatory (particularly in respect of proceedings under section 138 of the Negotiable Instruments Act) and whether the trial court was right in applying section 219 of the Code of Criminal Procedure and acquitting the accused ?
The appeal proceeds on these common grounds : On March 18, 1991, the accused has availed of a loan of Rs. 20,000 from the complainant agreeing to repay the same with an interest of 30 per cent, per annum. To repay the said amount, the accused had issued cheques drawn on Standard Chartered Bank, N.S.C. Bose Road, Chennai, on various dates as noted under :
1-5-1991 -Rs. 1,300, 16-5-1991 -Rs. 1,300,
1-6-1991 -Rs. 1,300, 16-6-1991 -Rs. 1,300,
1-7-1991-Rs. 1,300, 16-7-1991 -Rs. 1,300,
25-7-1991 -Rs. 7,000, 1-8-1991 -Rs. 1,300,
16-8-1991-Rs. 1,300, Ex.A.l series.
All the cheques were presented together for collection in the UCO Bank, Purasaiwalkam branch, on August 30,1991; all cheques were dishonoured on the same day, i.e., on September 2, 1991, with an endorsement "payments stopped by the drawer". After issuance of notice, the complainant has filed the complaint relating to nine cheques. The accused does not deny issuance of cheques. He only denies the borrowal of Rs. 20,000 but claims to have borrowed only Rs. 10,000. According to the accused, he repaid Rs. 10,000 and got back the two other cheques. Thus, the complaint is on the nine cheques.
In case the drawer of the cheques fails to make the payment of the said amount within 15 days from the date of receipt of the notice, the holder can launch prosecution against the drawer within the next one month. No doubt, cause of action for each cheque is distinct and separate. But does it mean that all the instances of nine cheques presented together for collection cannot be clubbed in a complaint for dishonour ?
Section 219 of the Code of Criminal Procedure contemplates joinder of charges. Under section 219 of the Code of Criminal Procedure, when a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with and tried at one trial for, any number of them not exceeding three. It is not in dispute that the respondent is accused of the same type of offences under section 138 of the Negotiable Instruments Act in respect of the aforesaid cheques. The cause of action accrued to the complainant on a single day-dishonour of all cheques together ; issuance of single notice (exhibit A3) ; and reply (exhibit A4) and non-payment of amount on all the cheques by the respondent/accused. Since the cause of action accrued at the same point of time, single complaint filed for nine cheques is legally maintainable.
The idea behind section 219 of the Code of Criminal Procedure is to avoid multiplicity of proceedings in criminal matters. In fact the joinder of causes of action is permissible under Order II, rule 3 of the CPC also. of course/ as per requirements of section 218 of the Code of Criminal Procedure and section 219 of the Code of Criminal Procedure, it is desirable to file separate complaints. Since section 219 of the Code of Criminal Procedure adverts to the procedural aspect, it is not the mandatory requirement under law. This is all the more so, in cases arising under section 138 of the Negotiable Instruments Act. Section 219 of the Code of Criminal Procedure incorporates a general rule and are not mandatory in proceedings under section 138 of the Negotiable Instruments Act. The cheques were issued within a gap of one or two months. They were presented together for collection and returned by the same endorsement. Considering the fact that a single notice was issued and no repayment is forthcoming, in my view, there is nothing illegal in filing a single complaint nor does the trial is vitiated on account of the same. The reasonings of the trial court that there is violation of section 219 of the Code of Criminal Procedure and the acquittal of the accused on that ground cannot be sustained.
Yet another reason could be pointed out that the trial court ought not to have applied section 219 of the Code of Criminal Procedure. As said earlier, all the cheques were presented together on the single day, i.e., on August 30, 1991, and all nine cheques were dishonoured on a single day with endorsement "payments stopped by the drawer". As such, each cheque will not give separate cause of action for two reasons-
(i) presentation together and
(ii) same endorsement of return. Thus, the presentation of the cheques together, dishonour of all the nine cheques on a single day and issuance of single notice result in forming part of the same transaction.
Section 220(1) of the Code of Criminal Procedure states that if one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for every such offence. In the present case though the giving of eleven cheques by the accused/petitioner to the complainant/respondent may be on different dates but all those acts of giving these cheques were merged together to form the same transaction, viz., the presentation of these cheques together on one particular day as requested by the petitioner/accused herein. In other words even though different cheques were given on different dates, the presentation of al] these cheques formed the same transaction. Further, the appellant also made the demand on the dishonouring of the cheques by issuing one lawyer's notice (exhibit A3) and not several demands made for the payment of the dishonoured cheques. Held, therefore, that the petitioner/ accused herein may be charged and tried at one trial for several such offences because the series of acts are so interlinked or interconnected together so as to form the same transaction of dishonouring the cheques on a single day. Thus, a single complaint lodged is well maintainable in cases where the cheques were issued within a period of one year and where there is single presentation of the cheques and dishonour of the cheques with the same endorsement in or about the same time and issuance of one single notice. In fact, such filing of single complaint prevents multiplicity of proceedings saving the time of the court. It is advantageous not only to the complainant but also to the accused.
Parties went on trial and the accused was explained of the charge and the accused had not complained of any violation of provisions under section 219 of the Code of Criminal Procedure during trial. This all the more so when the respondent/accused has not complained of any prejudice. As noted earlier, the respondent/accused was furnished with the copy of the complaint; gist of the charge was explained to him and the parties went on trial and the accused was also questioned under section 313 of the Code of Criminal Procedure. But the accused had not complained of any prejudice by clubbing of the cheques. On the maintainability of the complaint in view of section 219 of the Code of Criminal Procedure, arguments were advanced only at the time of arguments. Section 219 of the Code of Criminal Procedure is not attracted to the facts of the present case for the simple reason that the accused had not raised his objection at the earlier stage nor complained of prejudice during trial. While so, the learned magistrate erred in finding that there is violation of the provisions under section 219 of the Code of Criminal Procedure.
The respondent/accused had denied the borrowal of Rs. 20,000 and admitted the borrowal of only Rs. 10,000 and claimed discharge. The learned magistrate has not considered that contention raised by the accused. This court is conscious of the fact that this is an appeal arising out of the acquittal, where the court is to tread cautiously. But when there is misapplication of the provisions of the law resulting in substantial error and miscarriage of justice, the High Court is empowered to interfere with the acquittal.
For the reasons stated above, the order of acquittal is to be set aside, directing retrial of the acquitted respondent/accused.
Therefore, the judgment of the 5th Metropolitan Magistrate in C. C. No. 9577 of 1991 (dated March 22, 1993) acquitting the accused is set aside. The matter is remitted back to the trial court for fresh consideration. The trial court is directed to afford opportunity to both the parties in adducing additional evidence, if any and consider the matter afresh and dispose of the same in accordance with law. The trial court is further directed to dispose of the matter within four months from the date of receipt of the records.
R.Ramachandran
(Expert) 15 January 2012
Dear Mr. Makkad,
While I agree that filing separate complaints in respect of each cheque would be highly advisable, I am afraid the judgment cited by you does not support your view: "Separate complaint for each case is required to be filed. Cheques cannot be clubbed." The judgment says quite the contrary.
V R SHROFF
(Expert) 15 January 2012
One do not know, how JMFC look at it,
So a one, strict J act fast out of 9, will also pressurize accused.
Though it differ from cases to cases, one of the case yield faster result.
One cannot manage all court all staff.
Shonee Kapoor
(Expert) 15 January 2012
Nothing left to comment.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Deepak Nair
(Expert) 16 January 2012
Dear Rajkumar Sir,
The judgement presented by you supports the argument tha single complaint for multiple cheques are maintainable. Please refer to the extract from the judgment below:
"Section 220(1) of the Code of Criminal Procedure states that if one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for every such offence. In the present case though the giving of eleven cheques by the accused/petitioner to the complainant/respondent may be on different dates but all those acts of giving these cheques were merged together to form the same transaction, viz., the presentation of these cheques together on one particular day as requested by the petitioneraccused herein. In other words even though different cheques were given on different dates, the presentation of al] these cheques formed the same transaction. Further, the appellant also made the demand on the dishonouring of the cheques by issuing one lawyer's notice (exhibit A3) and not several demands made for the payment of the dishonoured cheques. Held, therefore, that the petitioner/ accused herein may be charged and tried at one trial for several such offences because the series of acts are so interlinked or interconnected together so as to form the same transaction of dishonouring the cheques on a single day. Thus, a single complaint lodged is well maintainable in cases where the cheques were issued within a period of one year and where there is single presentation of the cheques and dishonour of the cheques with the same endorsement in or about the same time and issuance of one single notice. In fact, such filing of single complaint prevents multiplicity of proceedings saving the time of the court. It is advantageous not only to the complainant but also to the accused."
Deepak Nair
(Expert) 16 January 2012
Further, the beginning of the judgment itself says that signle complaint for multiple cheque is maintainable.:-
""Issue Involved:
Whether complaint under section 138 is bad in law if more than three cheques are clubbed together in a single complaint?
Held
No. Section 219 of Cr.P.C is not mandatory requirement and only a procedural aspect. Since one single complaint has been issued clubbing all the cheques together, a single complaint clubbing all the cheques is legally maintainable.""
Advocate. Arunagiri
(Expert) 16 January 2012
Your recent reply is very nice Mr.Deepak. It is quiet impressive.
ajay sethi
(Expert) 16 January 2012
i belive there is a judgement of bombay high court wherein it has been held that not more than 3 cheques can be clubbed together in one complaint under section 138 NI
manoj joshi
(Expert) 17 January 2012
REAPECTED MEMBERS
WD DUE REGARDS IM VERY MUCH PLEASED TO GET SUCH A HUGE INFORMATION ABT 138 NI ACT.
AS FAR AS MY KNOWLEDGE IS CONCERN...IM OF OPENION THAT ONE SUD FILE 9 CASES FOR 9 CHEQUES 9 DISHONOURS 9 NOTICES AND 9 CASES . IT WILL BE SEEN FURTHER THAT WHAT MAGISTRATE DECIDES REGARDING SUCH ISSUE.
AS FAR AS DELAY IN JUDGEMENT IS CONCERN NOW ITS CLEAR THAT ALL FINANCIAL CASES LIKE NI ACT WILL BE PROCEED IN FAST TRACK COURTS THATS MEAN IT WILL DECIDED IN 1 YEAR ALMOST
R Trivedi
(Expert) 18 January 2012
Complainant should not file multiple cases just to harass the accused. If all the cheques are for the same transaction, then they must be clubbed wherever possible. In one of the rulings Supreme Court has indicated imposing heavy Penalty on Complainant if such tactics are employed by complainant.
