Section 138 of N.I. Act & Section 200 of Cr.P.C
Vinoba
(Querist) 23 January 2011
This query is : Resolved
Sir,
I would like to know about the current position of law on the following facts.
My client 'A' has issued a blank undated cheque in favour of 'B'during the year 2005 for repayment of loan availed by her. Subsequently my client had repaid the loan amount and demanded 'B' for the return of the cheque issued by her. 'B' claimed that the cheque is in possession of his son-in-law 'C' who is residing abroad and that he would return the cheque after his son-in-laws return. In the year 2005 itself 'B' has also executed a Deed of Undertaking in a stamp paper stating that he is in possession of the cheque issued by my client. Therefore my client left the matter as it is. After a lapse of around 5 years, 'B' has filled the blank undated cheque issued by my client in the name of one 'D' and had presented the same as if it was drawn for a huge amount during the month of December 2010. My client swiftly acted and gave stop payment instructions to the bank and lodged a complaint against 'D' before nearest Police station. The Police authorities had closed the compliant stating that it was civil in nature. Now I have preferred calender case as against all the three i.e, 'B', 'C', and 'D' for cheating and other offences. Now the query is that the magistrate is hesitating to take up the case on file stating that there is a presumption against my client under Section 139 of NI Act and therefore a seperate compliant is not maintainable. I want to know is there any precedent on this point to support my case.
Vinoba.L
Advocate,
Pondicherry-08
Ajay Bansal
(Expert) 24 January 2011
File an application u/s 340 Cr.P.C. alongwith deed of undertaking, written on stamp-paper.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 24 January 2011
You can contest in the NI 138 case when filed and there after can proceed for various other actions.
sachin sethi
(Expert) 24 January 2011
I think that both the criminal cases though interconnected with each other yet each of them is an independent proceeding which has to be adjudicated on its respective circumstances... in complaint case filed by you,,,at this stage Magistrate is only concerned with prima facie case of your client i.e. to say the totality of allegations and the proofs you have placed on file in support of your allegations...More so presumption against your client is not a bar to the Magistrate taking cognizance in your complaint,,,especially if in the deed of undertaking executed by B cheque no. is mentioned...however if it is not so then also you argue your case on the point of prima facie of allegations and proof....in addition to it Magistrate has to examine that whether the offense is made out or not on the face of complaint...there is nothing in criminal law which declares the complaint to be non-maintainable....maintainability is question of civil law....Magistrate will only see whether offense is made out or not....even in case of dismissal of your complaint you can contest the proceeding u/s 138 on the grounds of liability towards D and other grounds and then you can sue each of them for malicious prosecution as well as for offense u/s 420 IPC...
Advocate. Arunagiri
(Expert) 24 January 2011
My suggestion is you file a discharge petition before the court.
Latter file a case u/s 420 ipc.
Amit Minocha
(Expert) 28 January 2011
I feel that merely on grounds of presumption u/s 139 your complaint cannot be rejected. It has to be heard and decided on merits and you have every right to get the trail done. Also during cross put the document to the complainant and then move 340 crpc if needed.
Vinoba
(Querist) 28 January 2011
Hello,
I thank all the experts who had spent their valuable time for sharing their ideas to my query. Thank U.
Vinoba.L
Advocate,
Pondicherry.
