Transfer of 138 ni case in view of recent apex court judgement
498A-filed
(Querist) 10 August 2014
This query is : Resolved
Dear Experts,
As per the recent supreme court judgement, the jurisdiction of the 138 NI case is at the place where drawee's bank branch is located. And since the hon.Apex court in its wisdom has decided to apply it retrospectively, I have some apprehensions about my case after reading the judgement and I need your help to understand its effect on my case.
My wife's account is in state A where we lived together after marriage.
I shifted to my home town after she left me in state B and deposited the cheque in my bank account in state B. Sent notice from state B as well and filed the case.
Cognizance taken under 420 IPC & 138 NI & summons issued after recording of statements u/s 200 & 202 of crpc and after submitting the list of documents.
She is in state C at her parents home.
Now my apprehension is that she can put a transfer petition in the supreme court and get a stay on the case. Because there will be thousands and thousands of transfer petition of cheque bounce cases, my case may get delayed for months.
If the case gets transferred, I will have to travel long distance to pursue my case.
Kindly give your inputs and also guide me whether this transfer is also applicable in my type of case where sec 420 of IPC is also applied along with the 138 NI.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 10 August 2014
The position has been made specifically clear in the current judgment but it was alrady there in SC CASES such as ABRAHAM CASE OF 2004 , Division bench HARMANN 2008 case AND Krishna Variar case of 2010 .
BUT EARLIER BHASKARAN CASE WAS BEING MISUSED BY MANY COMPLAINANTS AND HENCE SC HAS COME OUT WITH SPECIFIC CLARITY TO AVOID HARDSHIPS TO MILLIONS OF ACCUSED.
But if 420 is added it may not apply.
BUT still there is hurdle of 2005 amendment for issue of process to out of jurisdiction accused which any expert advocate can exploit and get the issue of summons set aside even for IPC 420 with NI 138 at any stage.
498A-filed
(Querist) 10 August 2014
Expert Advocate Defense can you elaborate on the 2005 amendment.
Also please guide me because before filing the case, I read many judgement in which the court held that if one can prove that fraudulent intent existed at the time of issuance of cheque, then both 420 ipc and 138 NI can lie together. And if the summons are set aside then will new summons can be issued under sec 138 NI or my case will be dismissed.
Kindly advise. Thanks
498A-filed
(Querist) 10 August 2014
Sir cause of action is there in my 420 IPC case because
1. Part of the transaction also happened at state B
2. The cheque was presented at state B
3. The petitioner ie me resides permanently in state B because I have shifted from state A.
4. The notice was sent from state B
In view of the above can it be said that the jurisdiction did not exist?
ANIL AGARWAL
(Expert) 12 August 2014
Once process is issued for offence u/s.420 IPC alongwith 138 of N.I.Act, as per the latest judgement, it will not require transfer.
498A-filed
(Querist) 12 August 2014
Thanks Anil Sir. I was very nervous and lost my sleep after reading the 87 page supreme court judgement.
But sir I have seen many important supreme court judgments not being followed by subordinate courts.
The latest example is the famous Arnesh judgement in which the apex court directed that no arrest should be made in 498A cases without the permission of the magistrate and the magistrate before issuing an arrest warrant should record proper reason for doing so.
But still people are being arrested and also AB is not being granted in a large no.498 A of cases by giving non important reasons.
We cited the arnesh judgement in many of my friends case but in non of the case we were granted AB by the high court or even the district court on surrender (439).
Arnesh's case is in Bihar and the judgement was against the AB rejection at Patna High Court. Still Patna High court is very reluctant in giving AB in 498 A cases.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 12 August 2014
Just by reading judgments and expecting to solve complex legal CASES is rarely possible.
You have made large no of questions and if your have read the judgment properly it has given answers to all of them.
Whole problem with citations is that people take view on particular words or paragraphs and than start complaining that it is not followed.
In your case if NI 128 and IPC 420 is in one complaint only and if the court has issued process it is illegal.
NI 138 case is without jurisdiction at thresh hold and even without this citation it is liable to be dismissed as per earlier large NO of Judgements of SC and by most of HIGH COURTS.
498A-filed
(Querist) 13 August 2014
Sir Advocat defence, I am your big fan. Before filing the complain u/s 138 NI read with 420 IPC, I read several high courts and supreme courts judgment and I learnt that if we can prove that at the time of giving the cheque if the intention was not honor it then 420 ipc is also made out along with 138 NI. The ingredients of both the offence are different but they can originate from same set of facts.
I have read the 87 page judgement and the supreme court was concerned about the misuse of previous judgements in chosing the jurisdiction by the complainant. Just by depositing a cheque or by sending a legal notice one cannot chose the jurisdiction with an intention to harass someone.
In my case part of transaction has taken place at my state and in no way I have filed the case to harass the accused. In fact her current residence is closer to my state than the state in which she holds her bank account. And I have also proved to the court that she had the intention of fraud at the time of issuance of cheque, so it is a clear case of 420 and not of 138. But the court chose to take cognizance under both the sections because the ingredients of both 420IPC & 138 NI were made out.
498A-filed
(Querist) 13 August 2014
And my experience so far with high courts at my state have been that each judge have a particular mindset and getting the cases quashed by citing a judgment is not possible. They look for other substance also. Getting the cases quashed by raising technicalities is not as easy as it looks.
So many 498A cases are filed without jurisdiction and also without specific allegations and despite many Apex court judgements, the cases against the main accused rarely get quashed.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 13 August 2014
Well I am happy that I have a solitary fan on this site otherwise people are against since I give contrary views from my actual work experience.
Now you have touched the real issue that courts do not go by citations, it is true even for SC.
In the judgment of this query which is THREE BENCH judgment has also mentioned many two bench citations of their own court which are not legal.
So ultimately it is the expertise of an advocate to bring results by hard work, wit and ultimately it is all gimmick of words.
498A-filed
(Querist) 13 August 2014
I agree with you Sir and I also agree with your statements when u say that cheque bounce cases can be won if we prepare and raise proper defense from the initial stage of the case.
Here I was on the other side of the spectrum because I have filed a cheque bounce case against my wife. I read many of your posts and took them very seriously.
I got the legal notice and the complaint petition drafted together and made sure that all the details are there in the legal notice. I also made sure to adhere the time lines of sending notice and filing the complaint. I mentioned all the witnesses and gave all the list of documents in the initial stage only. I engaged one of the best lawyers for filing a cheque bounce case and prepared the sequence of events after going through my phone bills to see where I was at a particular time, in order to avoid any mistakes. I read the notice and complaint petition several times before filing it and brought all mistakes in the notice of my lawyer. I also made sure that the notice is properly refused by the accused. I approached the postman before hand and requested him to mention the correct reason if my wife refuses to accept the notice. I made sure that every defense you raised was taken care by me.
I was also very particular about disposing as witness in 200 crpc and also helped the witnesses in disposing under 202 crpc.
If I get success in winning my case, the credit will go to you along with my lawyer. I have proof for her legally payable debt to me and also her signed cheque for the same amount.
It is very important to see that she land in jail after flying high not only because she is a 420 girl but also because she wants to see me in jail by filing false dowry case after running away with my money and all our jewelry.
So thanks a lot Sir Advocate Defense. I know you are a defense lawyer and you help the victim of false cheque bounce cases. But I am also a victim of a fraudster who happens to be my wife. She has not only cheated me but also filed false cases on me. I look forward to your support.
T. Kalaiselvan, Advocate
(Expert) 13 August 2014
There was a similar query from the wife side asking in reverse about the same query seeking a favorable reply from experts here. The only similarity between both the cases is that both the spouses are bent upon to see their respective counterparts behind the bars to toil in the prison atleast for more than a day.
The author may exercise caution while posting more and more technical queries which may otherwise turn adverse to him, in view of the obvious reasons.
498A-filed
(Querist) 14 August 2014
Thanks to everyone..
