Need opinion on my case (Negotiable Instruments Act, Section 138)

Mr Ezzy,

The details you mentioned herein about the "case" is incomplete.

IF : -

1)  The case filed by the complainant is for the Offence U/S. 138 of N.I.Act.,  only;

2) You are not the party to the cheque;

3) You are not related with the Account; 

Then, how the case is 'Registered' against you as "ACCUSED -1".

Please furnish the full details about your case, then we can guide you. 

hello...  section it self very clear about the same...

so far n.e.act sec-138 is concerned, if you are not signed the cheque or the is not belongs to you ... you were not liable for the same.

Sorry for incomplete details. Here's a detailed overview of the case:

My partner (complainant) and I started a business based on mutual understanding, without signing any documentary agreements or setting up a company officially.



I had prepared a cash flow for a year of which I received a certain (35% of total) amount in cash & cheques from him, for which I had provided duly signed receipts on my company letterhead. However, after only 4 months of our partnership he suddenly stopped communication (and the finance ofcourse), which I later understood was a part of the plan.



Now he has implicated me in a case under 138NI and 420IPC where he has somehow acquired and used 3 cheques of my relative (Accused #2) and framed a case based on forged evidences. Also, he has forged a letter mentioning it a ''loan'' with interest of 18% p.a whereas it was a 70:30 partnership.

As I mentioned, there are a lot of inconsistencies in the documents he has attached and the forged signature is very clearly identifiable.

The only signatory of the cheques in question is Accused #2. I'm not involved with Accused #2 in any business operationally or financially. We're just relatives. The cheques he has acquired were for an entirely different purpose.



What I'd like to know is:



1. Is it that 138 NI applies to Accused #2 and 420 IPC to me, OR both to both of us OR both to Accused #2 who is the only signatory of the cheques?



2. If the documents and signature are indeed proven to be forged, will I be acquitted from the case from both 138 NI and 420 IPC or just 138?



Many thanks in advance.

whose signature was forged? Why you have been made an accused. Give details of allegation made in the complaint against you.

No 

sec. 138 of N.I.Act  and 420 of I.P.C can't run jointly . if magistrate has takin cognizance  than go to high court you will get relief.

actually i m not getting your point as you are saying cheque is not belonging to you you can't prosecuted under N.I.Act

so give full detail

Yes, the checque does NOT belog to me, but he has still dragged me in. He has made up a story that the LOAN was guranteed by Accused #2 and the cheques are for the same.

Dear Ezzy,

You are seeking opinion about:

" What I'd like to know is:



1. Is it that 138 NI applies to Accused #2 and 420 IPC to me, OR both to both of us OR both to Accused #2 who is the only signatory of the cheques?



2. If the documents and signature are indeed proven to be forged, will I be acquitted from the case from both 138 NI and 420 IPC or just 138? "

But  Mr. Ezzy, you untill didn't clarified or mentioned:-

(a) The Complaint in question filedby the Complainant, is whether with the allegation for the offence   ONLY   "U/S. 138 of N.I.ACT";

(b) OR, the Complaint in question is a Private Complaint Filed U/S.200 of Cr.P.C., against You as (A-1) and your relative as (A-2) with the allegation for the offence " U/S. 420 of IPC R/W. Section 138 of N.I. Act "  

If you want the correct answer from us, then please  clearly mention and reply to the above (a) & (b) 

But meanwhile for the clatification of your doubts:-

(i) If the situation is as (a) of above, the Comlaint in question is wrongly registered against you as (A-1), and you can get "QUASH" the complaint against you, by filing a " Criminal Revision Petition" in the Hon'ble High Court of your State.

OR otherwise,

(ii) If the situation is as (b) the complaint in question, is maintainable against you as (A-1), and your relative as (A-2).  But, subject, to the "Evidence", "Relavency of Documents filed" Circumstances and on Facts of the case, thereby you can't escape from the liability & resonsibility.   

On the court summon there is NO mention of 420 IPC probably because the criminal court does not consider civil cases?

However, in his lawyers True Copy, both are mentioned - 138 NI and 420 IPC.

Dear Ezzy,

(i)  Sec. 420 IPC is a criminal Offence not a Civil one in nature.

(ii) Even though,  the Complaint is with the allegation of both the Offences, there is a chance for you to Proceed to the Hon'ble High Court for "Quashing of Complaint"  as clearly told by our learned brother Mr. Arora.

(iii) For "Dishonour of Cheques ONLY",  the Complainant can file a Case ONLY for the offence  U/S.138 of N.I. Act  and that too,  ONLY against the person, who issued the cheque in question and not against any third person.

(iv) If, the Complainant filed a "Criminal Case/Criminal Complaint"  for the the offence of Dishnour of Cheque(Sec. 138 of N.I.Act) Read With for the offences of Cheating, fraud and  misappropration (Sec. 420 of I.P.C),  against the person who issued the cheque, then complaint is not maintainable in the eyes of law.  There are several Judgement of different High Courts on this issue.    

(v) So for with concerned to your case:

If the Complaint in question is filed by the complainant as mentioned above in (iv) not only against A-2, but by involvig you as A-1, for the act of cheating and fraud played by both of you against him, the Complaint is maintainable and rightly Registered by the Hon'ble Magistrate.   Forged Documents, Forged Signature, Evidence are all secondary, you can disprove all of those if it is, as mentioned by you. 

Many thanks for your highly relevant reponses, Mr. Aejaz.

So as I understand, if its 420 IPC on Accused #2 (myself) and 138 NI on Accused #1 as a gurantor for returned cheques, then the case is considered valid and would continue?

If you notice what I said earlier, ONLY the complainant's lawyers TRUE COPY has a mention of 420 IPC, but the court summon mentions me Accused #2 under 138 NI for the cheques, there is NO mention of 420 IPC on the court summon. Therefore, should I take it as the court dropped the 420 charges while holding me responsible for the cheques under 138 NI (although I'm not the signatory)?

Thanks & Regards!

Many thanks for your highly relevant reponses, Mr. Aejaz.

Dear Ezzy,

Again You are confusing, as I said,

1) If the case is of Only for the Offence of Dishonour of Cheque, but complainant wrongly added another Offence i.e 420 of IPC in the same complaint and involved you also as an Accused, then the case is in-valid and not maintainable.

2) As our learned brother Mr. Arora said above " sec. 138 of N.I.Act  and 420 of I.P.C can't run jointly ". You can proceed to High Court.

As I understand from your all submissions: 

(a) Your case is not a case  only for the Offence of 138;

(b) Actually the case is a " Private complaint filed by the Complainat for the act of cheating and fraud play of both A-1 & A-2"

So, My adive to you: 

*** If and only if as sying by you with reference to face of the Summons, there is only 138, the case is itself in-valid;

*** If the Offences are 138 as well 420, then also it is not maintainable; 

***Consult personally  to you Legal Counsel/Advocate along with Summonand Copy of the Complaint;

*** Discuss him for revision to High Court for Quashing of the Complaint.  

Dear Friends

I think Mr Ezzy is talking abt the legal notice mentioning Sec.420  and legal case u/s 138 of NI Act. he may be confused in legal notice and case filed u/s 138 of NI Act.

Regards

To be more specifc:

His lawyers tru copy says:

"...failing which my clients have no alternate but to proceed for legal action either civil or criminal against both of you, specifically under section 138 of Negotiable Instrument Act r/w 420 of I.P.C..."

and the notice/summon recieved from court states:

"WHEREAS your attendance is necessary to answer the charge of:

u/sec 138 of N.I. Act"

title of this notice is "FORM I, SCHEDULE II, CR. P. CODE" and there is NO MENTION of 420 on this notice.

Thanks

Dear Ezzy,

Its now clear,

(1) Your case is only for the offence of Dishonour of Cheque U/S. 138 of N.I. Act

(2) The Cheques in question which are not related with you, but on dishonour of the same, he filed the complaint by making you also as A-1.

 (3) When, you are not related with the cheqes in question, he can not make you as an Accused in the said case.

(4) So, immediately approach a Lawyer of Concerned court take "Certified copies of the Complaint, and all the documentsi.e. cheque, supporting documents, legal notice etc.,".

(5) File a Petition in your State High Court  for "Quashing of Complaint".

With concerned to :

"...failing which my clients have no alternate but to proceed for legal action either civil or criminal against both of you, specifically under section 138 of Negotiable Instrument Act r/w 420 of I.P.C..."

Dear Ezzy, it is only a Warning given by the Lawyer of  financing partner (Complainant) while issuing Legal Notice on Dishonour of cheque, and thereby called upon you both (A-1 & A-2 to clear the Debts).  Don't worry about this.