Negotiable instrment act
BHARTI KOTHARI
(Querist) 16 September 2015
This query is : Resolved
Hello All expert,
I am In trouble as my matter is for argument.
the case is that the complaint has been filled against Mr. A and Mr. B of cheque bouncing.
The Mr. A is the signatory of the cheque. however the complainant has inducted B also with Mr. A by alleging him as a partner though he has not produced any cogent or even any evidence to that effect.
yes one thing he has admitted in the cross examination that the consideration he has paid to Mr. B. However he has no where stated that Mr. A has issued cheque in consideration of Mr. B liability.
My opinion is that complainant is not maintainble as Mr. A is the signatory and has not received any consideration and so also Mr. B is not the signatory to the cheque. I am expecting judgement on this point.
Thank you V much.
Regards
basavaraj shiromani
(Expert) 16 September 2015
Mr.A has been issued the cheque, Mr. B is not at all responsible for the offense U/s 138 of NI act. However, if the said cheque issued by representing any partnership firm, then who is responsible for the day today affairs of the firm that can be looked in to. therefore B is not at responsible for the alleged offense
ADV-JEEVAN PATIL, MUMBAI
(Expert) 16 September 2015
Liabily of bounced cheque ia limited to that amount. B may or may not held responsible. Your Lawyer is better judge
SAINATH DEVALLA
(Expert) 17 September 2015
If the cheque is issued from the account of a company or a partnership firm,then along with the company/firm the directors/partners will be held liable for the above said liability
if it is a cheque issued individually by A then B is not liable.
BHARTI KOTHARI
(Querist) 17 September 2015
Thanks all expert but my question is like Mr. B , Mr.A too not liable as admittedly the consideration was paid to Mr. B and cheque in question was issued by Mr. A. Please advice me on this point.
SAINATH DEVALLA
(Expert) 17 September 2015
U R not clear in expressing UR query( ARE U "B").
"Thanks all expert but my question is like Mr. B , Mr.A too not liable as admittedly the consideration was paid to Mr. B and cheque in question was issued by Mr. A. Please advice me on this point."
What do U mean by adding the above new twist.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 17 September 2015
Cheque law does not work like other criminal cases or civil cases.
There is basic presumption of guilt against the drawer unless proved contrary.
So once A has issued cheque he or she is liable for conviction even if it was issued for liability of B since the law says ANY CHEQUE.
SUPREME COURT IN 2015 EVEN SET ASIDE THE AQUITAL by HC AND CONVICTED THE ACCUSED., that is the drawer of the cheque for liability of other person.
The liability of B is vicarious and hence only an expert lawyer can get him out., only if there are no proper pleadings.
You must therefore look for other technical faults in the complaint which are always there to come out of the case.
basavaraj shiromani
(Expert) 17 September 2015
once the cheque has been issued by any person under the satisfaction of sec 138, he is held responsible. you have to search some technical grounds under the facts and circumstances of the case otherwise Mr A is held responsible if the cheque in question was issued individually.
Jeetender Gupta
(Expert) 18 September 2015
Criminal liability under NA Act remains confined to issuer of cheque if individual cheques. Whose liability was being paid is irrelevant. To an extent that if issued from a joint bank account, liability remains of the signatory and not all signatories. Only in case of cheques of firms & companies liability of proprietor, partners & directors etc also arises subject to establishing of their actual role & specific aver mens.
Jeetender Gupta
(Expert) 18 September 2015
Last two words be read as averments
prabhakar singh
(Expert) 18 September 2015
It would be better to view that once there is a cheque, there is legal presumption that it was issued for consideration under N.I.Act and consideration is defined in section 2(d)of contract Act; it reads '(d) When, at the desire of the promisor, the promisee or any other person has done
or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a
consideration for the promise; '
The word'' something'' is quite broad.
The presumption is no doubt rebuttable but by a quality evidence.
Stated facts are not so clear to form aa view the author holds.
SAINATH DEVALLA
(Expert) 18 September 2015
Engage a good competent lawyer well versed in NI Act and fight the case.
All the above legal experts have given valuable suggestions to the querist more than his appetite.
Rajendra K Goyal
(Expert) 18 September 2015
Full case file need to be referred. Consult local lawyer and discuss full facts in detail.
K.S.Srinivas
(Expert) 18 September 2015
I agree with the opinion of Expert
Jeetender Gupta.
Consult a lawyer to defend the case.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 19 September 2015
After I had given my opinion there has come a very IMP judgment in a case similar to yours.
That if there is no notice, no pleading to the effect the A had agreed to pay for the liabilities of B than A is absolved.
However please do not jump on conclusions and go through the notice, your reply if any, pleadings and further evidence and if it conforms to what is said above than A can surely come out.
