case u/s 138 NI Act

 The beauty is to agree to disagree. 

you can file the case u/s. 138 NI Act along with the certificate of bank and at the time of trial you shall examine the manager of the bank as prosecution witness in fnal you are not suceeded in the case you can approach consumer court against the bank for deficieny of service.

 I think in the absence of the cheque, the case will not be admitted. Remember the concept "holder of the cheque in due course". Bank's certificate cannot replace the cheque.

DEAR YOGENDERJI,

WITHOUT CHQ, RETURN MEMO, NOTICE, ACK OF POST,RECEIPT/REFUSAL/UNCLAIM ,COMPLAINT ARE ESSENTIAL THINGS TO FILE A CASE UNDER NI 138 AND Cr PC 200, BUT UR CASE IS LAKING OF MAIN CHQ AS REQUIRED IN NI ACT, BUT IT IS NOT UR MISTAK IT IS FACT.

HENCE U CAN TRY BY FILLING IN SWORN AFFIDAVIT WITH DETAILED EXPLANATION TO ALLOW YOUR COMPLAINT FILLED BY THE MAGISTRATE AS A SPECIAL CASE , NOTHING WRONG IN EXPLAINING THE CASE FACTS TO HON'BLE COURT , I HOPE COURTS ARE FOR THAT REASON SOME TIME INTERPRETE STATUTE IN THIS WAY IN UR FOVOUR ALSO . The main object of the section 138 of the said act is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. ALL THE BEST....REGARDS ...PJREDDY

 Corpus delicti is a term from Western jurisprudence which refers to the principle that it must be proven that a crime has occurred before a person can be convicted of committing the crime. For example, a person cannot be tried for larceny unless it can be proven that property has been stolen. Likewise, in order for a person to be tried for arson it must be proven that a criminal act resulted in the burning of a property. Black's Law Dictionary (6th ed.) defines "corpus delicti" as: "the fact of a crime having been actually committed."

The gentleman in question would be mighty lucky if without check in his hand, the case is admitted and doubtly lucky if he succeeds. Bank Manager's statement or certificate is of no value in this matter. It is not certifying the ledger account.

SHIVSURYA SUGGETION CAN BE FOLLOWED FINALLY...

 Complaint under Sec.138 and then to Consumer Court are two diametrically opposite ideas. If the Consumer Court is the remedy, let him go there straightaway. Without the cheque, there can't be a case no matter what the bank manager says.

File a complaint u/s. 138 NI Act along with the certificate of bank and at the time of trial you shall examine the manager of the bank as prosecution witness in fnal you are not suceeded in the case you can approach consumer court against the bank for deficieny of service.

mr.anil agarwal is correct.

do you have a xerox of the cheque and if you have one you can file a complaint in the police station within your jurisdiction based on the letter issued by the bank and with the strength of the complaint you can file a complaint before the criminal court by leading secondary evidence in lieu of the lost original cheque. A kerala High court ruling supports your case.

 I still hold the ground that without the original cheque, case u/s 138 can't be filed. I request the friends to give me liberty to hold contrary view.

NO REMEDY POSSIBLE UNDER  "N. I. ACT"

1.  A bank cheque is a negotiable instrument under the Act.  No cheque = no negotiable instrument.
There are more than a dozen parameters which constitutes the "cheque"  as a  "negotioable instrument"  for the purposes of prosecution under the N.I.Act.

2.  u/s 138, case can be filed for "dishonour of cheque".  No cheque = No case.
A case cannot be taken up on "nil evidences" (absent cheques) or on "secondary evidences" (bank letters), or "photocopies"  under the N.I.Act.

3.  cheque is an evidence (primary & conclusive documentary proof, under evidence act).

4.  Bank certificate has relevance under Banking Act and is totally useless under the N.I.Act, the CPA Act and the IPC, unless the primary evidence (cheque)  is produced.

5.  Bank certificate or letter is not a "negotiable instrument" within the provision of the N.I.Act,  and cannot be accepted in lieu of a bank cheque. Bank certificate at the most can be treated as a "secondary evidence",  HOWEVER ONLY WHEN accompanied by mandatory primary evidence (original cheque). 

6. The object of N.I.Act (u/s 138)  is to prosecute and penalise offenders and has no provision or words mandating "unholding faith in banking operations".

7.  The object of the N.I.Act is to uphold the law passed by the legislature and not uphold faith in banking operations.  "FAITH in banking operations"  maybe a "preamble" during / while formulating the N.I.Act, but certainly it is not the law.

8. Filing a case u/s 138 and getting an unfavourable judgement (2-5 years) and then approaching the Consumer Court will be Time barred and not maintainable.

9.  Aggrieved party, has to file a case under the Consumer Protection Act, at the district forum, at the first instance, based on deposit slips, return memo etc...,  since no prosecution is maintainable under the N.I.Act, due to absence of primary documentary evidences.

Keep Smiling .... Hemant Agarwal