Negotiable instruments act
manish mundra
(Querist) 23 February 2013
This query is : Resolved
what step should be taken by a person who is neither a signatory nor a office bearer in a company gets a summon from court for cheque bounce u/s 138 of negotiable instruments act. The person is merely a relative of the signatory and the complainant in order to extract money from that person has made a false complaint ?
Arvind Singh Chauhan
(Expert) 23 February 2013
File revision against summoning/ cognizance order in session court or to approach HC under Sec 482 Cr.P.C.
manish mundra
(Querist) 23 February 2013
what will be the process and time required in getting order? Can that person appear in before the CMM and can excplain his position?Any more suggestion??
Kiran Kumar
(Expert) 23 February 2013
Well advised by Arvind.
Before the trial court, you may have to stand the full trial. So, its better to challenge the complaint as well as the summoning orders instantly.
C. P. CHUGH
(Expert) 24 February 2013
Agreed with Xperts. Nothing more to add. Revision before Session Court normally takes less time and cost than application u/s 482 for quashing of complaint before High Court. First exhaust the Session's option and if failed move High Court.
V R SHROFF
(Expert) 24 February 2013
Revision Application in Sessions Court against the order issuing process/ summon by JMFC is preferred.
In case it fail, go to higher court.
Go Stepwise.
Most probably your Rev Appli will be allowed.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 24 February 2013
Though power of defense is immense still you have to analyse the pleadings in complaint and also details in notice.
Law of vicarious liability has been developed since PRIVY COUNCIL days so once a process is issued you have to go through trial and make efforts to demolish the case of the complainant.
This is a criminal trial and higher courts insist for facing the trial. Please go through the very recent ARUSHI MURDER case where in even the prosecutor the CBI had declared that no case is made out and applied for closure of case but trial court JUDGE did not agree and HIGH COURT even the SUPREME COURT declined to interfere.
prabhakar singh
(Expert) 24 February 2013
But Mr.ADVOCATE DEFENSE !
Facts in this query are quite different.How can why should the magistrate issue summons to a person who's never issued a cheque nor his cheque has got dishonored .
I say you go for a quash if no cheque at all was issued and implication of your's is only due to the fact that you are simply relative of issuer(drawer of the cheque)and intention of complainant is to extract money from you.Quash would be good decision to go for when in experience it takes more time than a revision to frustrate the uncalled for desire of the complainant.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 24 February 2013
In Arushi murder case all these concerns have been addressed by High court and even Supreme court in CRIMINAL TRIALS.
Whether rightly or wrongly if the pleadings are made in the complaint against any person and process issued than higher court insist to face the trial.
Revision in higher courts will be addressed only when there are no pleadings and process is issued.
Just because a pleading is false than it has to be proved by evidence in trial court .
DEFENSE ADVOCATE.-firmaction@g
(Expert) 24 February 2013
Please go through following recent observation of SUPREME COURT in recent case.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1735 OF 2011
Court also referred to the decision of this Court in
State of Haryana v. Bhajan Lal reported in 1992 Suppl. 1 SCC 335 and also to the settled position of law that genuineness of the allegations/charge is an issue to be tried and the Court in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure cannot delve into such factual controversy as to quash the proceedings.
prabhakar singh
(Expert) 24 February 2013
I agree the point you are agitating.
But can there be a complaint against you u/s.138 N.I.even if there is no cheque at all on record issued by you ????
Is it still open to magistrate to issue summons.?Is it application of jurisdiction?or excess??or unwarranted??
DEFENSE ADVOCATE.-firmaction@g
(Expert) 24 February 2013
It is settled position of law that genuineness of the allegations/charge is an issue to be tried and the Court in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure cannot delve into such factual controversy as to quash the proceedings.
That is why most of the revisions in Higher courts are thrown out causing heavy expanses to the litigant.
The concerned person should agitate in lower court and he can easily come out of it.
I AM OF THE FIRM OPINION THAT ANY DEFENSE ADVOCATE IF HE DOES HOME WORK PROPERLY THAN ANY CHEQUE BOUNCE CASE CAN BE WON SURELY SIMPLY AND EASILY IN TRIAL COURT IT SELF.
V R SHROFF
(Expert) 24 February 2013
ACCUSED SHOULD PROVE IN SESSIONS COURT, THAT CHEQE IS DRAWN FROM THE BANK OTHER THAN THAT HE HAVE.
And was not a signatory, nor concerned with the transaction.
Process issued against accused will be dropped/ set aside
prabhakar singh
(Expert) 24 February 2013
There are offences which can be tried simply
oral allegations of victim.
Yet there are offences which demands existence of documents even for lodging an FIR.
We must learn to distinguish between these kinds.
Every thing can not be swept away by any one judgement.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 26 February 2013
This is SUPREME COURT Judgement and hence law of the land to be followed by all sub ordinate courts till it is overuled by SC so sessions court or even HIGH COURT can not go against it.
Nadeem Qureshi
(Expert) 27 February 2013
Dear Querist
As per my opinion no need to file any revision before session court or quashing petition before HC u/s 482 of CR.PC.
You have right to file a Discharge application u/s 245 of Crpc before Magistrate and magistrate is bound to hear you and when you are not a signatory and not a director of the company, the court may discharge you, due to non-availability of committed any offence by you.
Nadeem Qureshi
(Expert) 27 February 2013
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."
Feel Free to Call
DEFENSE ADVOCATE.-firmaction@g
(Expert) 27 February 2013
Yes it is sure simple and easy to contest the case at trial stage by demolishing the evidence of the complainant.
Regarding section 245 of CRPC it is not applicable for cheque bounce cases which is summons case and the provisions of chapter XX OF CRPC are applicable which does not have any discharge provisions.
Raj Kumar Makkad
(Expert) 06 March 2013
All aspects of the query have already been discussed in detail leaving no scope to alter/add.
C. P. CHUGH
(Expert) 07 March 2013
But I still fail to understand how JMFC has taken cognigence of the offence when there is no prima facie evidence against the accused who has neither issued any cheque, not signed. More-over why he has not agitated it in reply to notice which was mandatory and have been served upon him before filling of complaint. In case he has replied positively, he is most likely to be discharged on the first hearing, but of course he has to surrender and get bail.
Thanks and regards
DEFENSE ADVOCATE.-firmaction@g
(Expert) 07 March 2013
Cheque bounce cases are legal turmoil since financial transaction have been given criminal procedures which are short and draconian.
Well wishers add miseries to the problem by suggesting short cut measures which add to agony and costs.
Such as =
a) Discharge by same court= Once a process is issued same criminal court can not recall it. ADALAT PRASAD IS THE landmark SC CASE LAW followed by all later Judgements.
Even provision of discharge is warrant cases or police cases is only after evidence is taken and not earlier.
b) Revision to higher courts for QUASH- If there are pleadings in the complaint than the accused has to face trial , higher courts can not interfere to decide whether pleadings are wrong or right. It has to be decided by evidence and trial only.
Refer very recent ARUSDHI MURDER case where even prosecution had applied for closure of the case but trial court did not agree and even HC and SC declined to interfere and directed trial to proceed.
