Sec.138 of n.i.act
SRIBHASHYAM MURALIDHAR
(Querist) 23 October 2014
This query is : Resolved
Accused borrowed some amount from father of Complainant. Both the Accused and father of Complainant did business. subsequently father of Complainant died. Later dispute arose between Complainant and Accused. Some elders heard both the Complainant and Accused and resolved that the Accused shall pay some amount to the Complainant. Accordingly the Accused issued two cheques to Complainant. On the basis of said Cheques the Complainant filed Complaint against Accused, u/Sec.138 of N.I.Act. There was no document that Accused borrowed money from the father of Complainant. No one is present at the time of giving of money by the father of complainant to the Accused. One more point is that Complainant is not sole legal heir to file complaint.His mother and younger brother are alive. There is no authorization from them to the Complainant to file Complaint.Whether Sec.138 of N.I.Act., attracts or not? since there was no consideration between Complainant and Accused.
ADV-JEEVAN PATIL, MUMBAI
(Expert) 23 October 2014
Since cheques have been issued to complainant by accused from his own account n bounced, u still initiate action u/s 138 of ni act. How to substantiate consideratiom is the skill of lawyer.
ADV JEEVAN PATIL
KANDIVALI,MUMBAI
ADV-JEEVAN PATIL, MUMBAI
(Expert) 23 October 2014
Since cheques have been issued to complainant by accused from his own account n bounced, u still initiate action u/s 138 of ni act. How to substantiate consideratiom is the skill of lawyer.
ADV JEEVAN PATIL
KANDIVALI,MUMBAI
dr g balakrishnan
(Expert) 24 October 2014
read the section carefully.
there should be necessary ingredients to be satisfied
appears from your query necessary ingredients are missing that is all.
if ingredients miss naturally that section may not apply,
only civil litigation mat=y be possible
Anirudh
(Expert) 24 October 2014
If there was no liability, how would you explain why the cheques were issued?
Advocate Bhartesh goyal
(Expert) 24 October 2014
If the execution of cheque is admitted then burden shift on accused and he has to prove that cheque were not issued towards any legally enforceable debt or liability
DEFENSE ADVOCATE.-firmaction@g
(Expert) 24 October 2014
Over active accused due to guilt complex spoil the cheque bounce cases by first giving admissions and than finding alibi in SECURITY CHEQUE etc etc.
They also select no serious advocates to support their theory and get convicted.
There are simple and out right sure defenses.
This is one of the Law which presumes the guilt if the accused admits that it was his cheque and bounced from his account.
99% of the defense is gone. In fact the accused proves the case of the complainant by such admission.
If the accused do not admit that it was his cheque and issued from his account than and than only the complainant has to prove it which is not simple and not easy.
There are technical defenses based on lapses in pleadings in the complaint and the documents of the complainant but far that only and expert advocate is needed.
Rajendra K Goyal
(Expert) 24 October 2014
The cheques were issued to meet the liability. The liability was accepted before the so called elders. Accused is liable.
Dr J C Vashista
(Expert) 25 October 2014
If the accused accepted his liability, the complaint is maintainable.
P. Venu
(Expert) 25 October 2014
The cheque was issued in a bargain and resultant settlement. Whether this amounts to a criminal liability is an untested proposition.
T. Kalaiselvan, Advocate
(Expert) 25 October 2014
As rightly observed by some experts, the sustainability of the case will depend upon the pleadings made in the complaint. If the pleadings include the reconciliation effort resulting into issuance of cheque by the accused in favor of the complainant and the person who mediated has been included as listed witness, the case may sustain. Again it depends on the skill of the advocates of both the sides.
dr g balakrishnan
(Expert) 25 October 2014
if necessary ingredients to fit the case under sec 138 fails section application fails, that is where your advocate need to handle. skill means hit the bulls eye!
SRIBHASHYAM MURALIDHAR
(Querist) 26 October 2014
I thank all my learned Advocate friends for their reply. In the case, the Accused did not plead guilt and lower court convicted him. Now he filed Appeal. Moreover the Complainant deposed in his cross examination that, he did not receive any amount from the Accused. The Complainant also deposed in his cross examination that, he do not know, whether his father lent money to the Accused or not.
