10 March 2010
It has to be remembered that a transaction may give rise to civil as well as criminal liability. In a given case the dividing line between the two liabilities may be very thin but the distinction is real and cannot be ignored. Thus, the cheque bouncing case can entail Section 420IPC also Keep in mind the ingredients of cheating as defined in Section 415 of the IPC which entails a fraudulent or a dishonest inducement of the complainant to either deliver any property or to consent that any such person shall retain any property or intentionally inducing the complainant to do or omit to do anything which he would not do or omit to do if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. Illustration (f) to the said Section of the Indian Penal Code, provides a clue to the mind of the legislature in such matters. The said illustration is as under: A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money. A not intending to repay it. A cheats. The actus reus and mens rea (guilty intention) both must concur to constitute a crime. Mens rea precedes the act. Whether the act is coupled with the pre- existing mens rea, a crime is properly constituted. Where there is no pre-existing mens rea and there is subsequent inability to perform the promise, only civil liability is incurred. As pointed out in the decision in Shantilal's case 1956 Cri LJ 68 (Madh Bha) a distinction must be drawn between a case where a post-dated cheque is given to discharge the existing liability and a case where it is issued against delivery of goods, property or cash with an assurance implied or otherwise that it will be met on being presented to the bank on the due date and in due course. In the first case the failure to provide the balance is merely a breach of promise whereas in the latter it may have different consequences. It is the intention of the drawer at the time when the cheque is issued which constitutes the material test and if it appears from the circumstances of the drawer that he did not expect that the cheque would be cashed in normal course, it would be prima facie proof of the intention to cheat as is clear from Illustration (f) to Section 415 of the I.P.C. What is material is the intention of the drawer at the time the cheque is issued, and the intention has to be gathered from the facts on the record. If from the circumstances it is established that the failure to meet a cheque was not accidental but was the consequence expected by the accused, the presumption would be that the accused intended to cheat Thus, if the aforesaid conditions are fulfilled you can lodge FiR u/s 420IPC parellaly with 138 NI
10 March 2010
10 March 2010
why i asked that question is because of my this case:- (PLEASE ANSWER) SIR MY NAME IS ASHISH AGARWAL AND I AM FROM LUCKNOW. I RUN AN ADVERTISING AGENCY IN LUCKNOW .THERE IS A EDUCATIONAL INSTITUTE IN ALIGARH WHO'S CHAIRMAN IS A INFLUENTIAL POLITICAL LEADER HAD RELEASED ADVERTISMENTS OF THEIR EDUCATIONAL INSTITUTE FOR ADMISSIONS THROUGH OUR ADVERTISING AGENCY FOR WHICH THEY HAD ISSUED PROPER WORK ORDERS AND POST DATED CHEQUES. ADVERTISEMENT'S COST WAS WORTH RS.2.00 CRORES APPROX. OUT OF THAT AMOUNT THERE CHEQUES FOR WORTH RS. 1.63 BOUNCED. SOME OF THESE CHEQUES BOUNCED TWICE AND THRICE. CLIENT'S POINT WAS THAT THEY HAD A BAD EDUCATION SESSION AND COULD NOT GET RESPONSE FROM THE ADVERTISEMENTS AND KEPT ON REQUESTING US TO WAIT FOR THE PAYMNET. IN THE MEANTIME TO SECURE OUR MONEY WE FILED A CASE OF 138 N.I ACT IN HON'BLE COURT OF A.C.J.M. NOW THE SITUATION IS THAT COURT HAVE ISSUED MANY SUMMONS BUT ACCUSED HAVE NOT TURNED UP..LATER ON COURT HAS ISSUED 2 BAILABLE WARRANTS TO THE ACCUSED BUT I AM SURE HE IS MANAGING THE LOCAL POLICE STATION AND TILL NOW ACCUSED IS STILL NOT COMING. OVERALL FACT HE IS TRYING TO BE AWAY FROM COURT AS LONG AS POSSIBLE. WHEREAS IN HIS EMAIL FROM THE CLIENT TO OUR ADVOCATE, CLIENT HAS SAID THAT THEY WILL MAKE THE PAYMENT IN APRIL. I AM NOT UNDERSTSNDING HE HAS EMAILED OUIR CLIENT REGARDING THEIR PAYMENT BUT NOT APPEARING THE COURT.
SIR NOW POINT IS CAN WE LODGE F.I.R AGAINST THE CLIENT UNDER IPC 420 AS THEY ARE CLAIMING THAT THEY HAD A BAD EDUCATIONAL SESSION WHICH IS REALLY NOT EXCEPTABLE FOR US BECAUSE THERE THIS POINT PROOVES THAT THEY ALREADY HAD A PLAN IN THEIR MINDS THAT IF THEY GET RESPONSE THEN ONLY THEY WILL MAKE PAYMENT ORELSE THEY WILL DO WHAT THEY ARE DOING WITH US.
AND HOW CAN WE PUT FURTHER PRESSURE ON THE CLIENT TO MAKE OUR PAYMENT?
FURTHER WHAT IS THE IMPORTANCE OF THE EMAIL FROM CLIENT TO OUR ADVOCATE SAYING THAT THEY WILL MAKE PAYMENT IN APRIL COZ' THIS EMAIL WAS SENT BY CLIENT IN RESPONSE TO OUR ADVOCATE'S EMAIL IN WHICH OUR ADVOCATE HAD SENT THE LEGAL NOTICES TO THE CLIENT AND ALSO THE COPY OF THE SUMMON OF HON'BLE COURT.ON THE OTHER HAND ON TELEPHONE CLIENT IS NOW REFUSING TO MAKE PAYMENT IN APRIL EVEN AND SAYING GET THE PAYMENT THROUGH COURT ONLY.
SIR PLEASE ALSO SUGGEST ME THE FIRMS WHO ARE KEEN TO PURCHASE MY CASE. MY CASE IS VERY STRONG AS I HAVE GOT ALL VERY STRONG PROOFS AND ALSO THE REPEATED COMMITMENT LETTERS FROM THE CLIENT SHOWING THE RESPONSIBILITY TO MAKE MY PAYMENT.
PLEASE REPLY ME SOON. THANKING YOU MOB NO IS 9235634505.