Statutory Notice without mentioning the cheque number
KANDE VENKATESH GUPTA
(Querist) 09 September 2008
This query is : Resolved
Dear Members,
Private complaint is lodged against my client that, X & Y approached the complaint for financial assistance and the complainant advanced Rs.1,00,000/- and X alone executed a promissory note agreeing to repay the same, and that Y issued a cheque in discharge of the above promissory note loan. In the statutory notice given to X & Y as well as in the complaint, cheque number is wrongly mentioned. The complainant filed civil suit only against X, which was also dismissed. The trial court acquitted my client and now the matter is coming up for hearing in the High Court. Please help me, by providing Judgments in the above facts for the following questions:
(i) What is the effect of the dismissal of the civil suit filed against X on the complaint u/s 138 of the N.I.Act?
(ii) What is the effect of wrong mentioning of the cheque number in the statutory notice as well as in the complaint?
(iii) Whether issuance of cheque on behalf of the others without any liability whatsoever and without specific undertaking,and bouncing the same, will attract the penal consequences u/s 138 of the N.I.Act.
sanjay kumar patibandla
(Expert) 09 September 2008
i). Civil suit is dismissed against the X means Legal enforceable Debt is not proved proved by the complainant. So 138 does not attracts.
ii)Wrong mentioning of cheque number in notice and complaint will help your case observe the following case laws.
1).
Negotiable Instruments Act, Section 138 - ACQUITTAL - Cheque number differs - Dishonour of cheque - Identity of cheque - Dishonour cheque was No 278548 - However, Cheque in dispute had no 278549 - Complainant failed to establish the cheque in dispute to be the dishonoured cheque - Held, conviction and sentence set aside - Accused acquitted.[Para 10 and 11]
Surendra Singh Versus Shankar Joshi
2003 STPL(DC) 117 MP : 2003 (1) DCR 384
COARM : HON'BLE S. L. KOCHAR, J.
Date of Decision :10/29/2002
2) Negotiable Instruments Act, 1881 - Section 138 - CrPc 1973 - Section 482 - Quash - Allowed - Cheque number differs - Different numbers of cheques in complaint and those introduced into evidence Held - Such defect goes very deep in the matter - Complainant can not be allowed to supplement the complaint by giving the number of fresh cheques - complaint quashed.[Para 46 to 54]
M/s. Kumar Rubber Industries Kapurthala Versus Sohan Lal
2004 STPL(DC) 322 P& : 2004 (2) DCR 270 : 2002(2) RCR(Criminal) 111 (P&H)
COARM : HON'BLE K. S. KUMARAN, J.)
Date of Decision :9/14/2001
iii) this point will also help u.
KANDE VENKATESH GUPTA
(Querist) 10 September 2008
Thanks very much Mr.Sanjay, If you don't mind can you send the above judgments to my mail. Please help me. In our State of Andhra Pradesh above law journals are not available. My case stands posted to
15-09-2008 for hearing.
venkateshgupta_kande@yahoo.co.in.
Yours,
Gupta
KANDE VENKATESH GUPTA
(Querist) 15 September 2008
Please Mr.Sanjay, let me know which High Court delivered the above Judgments. My case stands posted to tomorrow.
