Madhu Mittal
22 April 2023 at 15:23
A loan has been given to a borrower. In Trial court, borrower was convicted u/s 138 N I Act, but complainant was not duly compensated and only default sentence was ordered, so complainant filed revision at Session Court, revision was dismissed. So complainant filed petition u/s 482 Crpc in High Court Rajasthan, Jaipur now borrower expired. Whether complainant can make a request to High Court to appoint Amis curie even remuneration of Amis curie can be borne by complainant and decided the petition for points raised under it for the similarity in decision about how to calculate compensation. As per complainant, compensation is face value of cheque amount + 18 per cent interest as per Section 80 and 117 of N I Act , interest to be compounded Quarterly as per Supreme Court 5 judges bench case named Central Bank of India Vs Ravindra and ors. decided On 18.10.2001 + prosecution cost of Rs. 500/- per hearing as per Jharkhand High court case named Smt. Pallavi vs Shri Raj Kamal Decided On: 05.12.2007 MANU/JH/0647/2007 or AIR2008Jhar79 as case is dragged by the accused. And a sentence of imprisonment must be awarded in between one year to two years, as one year sentence of imprisonment proved insufficient so it was raised upto two years by amendment in 2002.
Madhu Mittal
15 February 2023 at 04:33
A loan of Rs. Two lakhs was given to a borrower on 25.03.2016, interest to be charged @ 15 % p.a. through banking channel on the basis of his post dated cheque of Rs. Two lakhs dated 25.03.2018 , when post dated cheque was deposited on 25.03.2018, it was dishonored, so a complainant u/s 138 N I Act was lodged against borrower, borrower alongwith his family left his residence as well as business place. On 06.09.2022 borrower/accused got his bail. On third hearing date of his appearance, i.e. 01.10.2022 he deposited a demand draft of Rs. Two lakhs in court alongwith an application to discharge him as per decision of SC decision M/S Meters And Instruments ... vs Kanchan Mehta on 5 October, 2017. The said Draft was got given to complainant on 01.10.2022 itself, next hearing is 12.10.2022.
On next hearing 12.10.2022, a detailed written reply was filed by complainant stating that 1.the said decision of SC was overruled by Five Judges bench judgment decided on April 16, 2021, so not to discharge the accused 2.Statutory interest @ 18% p.a. u/s 80 N I Act from 25.03.2018 to 01.10.22 i.e. for about four and half years should be got given to complainant in addition to face value of cheque 3. Cost @ 500/- per hearing for 26 hearing should be got given.
On 19.1.2023, by disposing of application of accused dated 01.10.2022, Trial court ordered that in addition to Rs. Two lacs, Rs. 20000/- (twenty thousand) as cost/compensation to be deposited in cash/Draft by accused and next hearing is 03.02.2003.
On 03.02.2003, accused deposited the draft of twenty thousand, but complainant refused to take this draft of additional amount. So next hearing was fixed 01.03.2023 for charge.
As complainant is not satisfied with this compensation/cost of Rs. twenty thousand, what is the remedy for complainant to challenge this order of compensation dated 19.01.2023? 1.To Session Court appeal u/s 372 2. To Session Court revision u/s 397 3. anywhere else under which section or 4. Not to challenge at all as accused was not discharged, but if not challenged now, later on it is said as far as compensation/cost is concerned, decision dated 19.01.2023 got finalty as it was not challenged.
Madhu Mittal
20 June 2022 at 21:06
A Loan is given to a Proprietorship Firm on the basis of post dated cheque of Proprietorship Firm duly signed by its Proprietor and A Promissory note signed by his son as Authorised Representative of Proprietorship Firm. When cheque presented, it was dishonored due to Insufficient Fund . Legal notice was got issued to 1. Proprietorship Firm 2. Proprietor 3. Authorised Representative. No reply from anyone of three.Case u/s 138 was lodged and Cognizance was taken against all three, Proprietor and Authorised Representative got bail. Substance of accusation was stated u/s 251.Now An application for discharge without mentioning Section in trial court has been put by Authorised Representative taking pleas that there is no relation of his with Proprietorship Firm and he was falsely implicated. Now there is A Supreme Court three bench decision Named Adalat Prasad V Rooplal Jindal in which it was stated that now remedy for accused is only u/s 482, Trial Court can not review its decision.Now there is a Supreme Court Decision Named Raghu Lakshminarayan Vs. Fine Tubes Decided On: 05.04.2007 according to which Proprietor Concern is not a Company u/s 141 N I Act, so its employee can not be implicated as accused. The reasoning for this decision not 100 per cent correct, according to someone’s view and mostly based on civil law which is also not correctly interpretated.
Now u/s 141 N I Act , Company means ……….includes a firm or …..
Here as per someone’s interpretation, a Firm is written, not Partnership Firm. So there a strong pleas that ‘a firm” includes not only both Partnership Firm Registered and Unregistered, but Proprietorship Firm also. Reliance is placed on following namely :
1. HIGH COURT OF MADRAS ,Swathi Creations Vs. Sivanandham Agencies, Decided On: 17.12.2004 MANU/TN/1575/2004 2. HIGH COURT OF ANDHRA PRADESH, Y. Venkata Reddy Vs. Jagadamba Enterprises and Anr. Decided On: 03.01.2002 MANU/AP/0893/2002
2. at : https://marketbusinessnews.com/financial-glossary/firm-definition-meaning/ A firm is a commercial enterprise…sole proprietorship, ..
3. Payee Proprietorship can lodged case u/s 138 (SC decision in Shankar Finance and Investments Decided on 26.06.2008) whie in Civil suit not in Payee name
4. It is settled law that statutory provisions shall have precedents over the judicial pronouncements
Now Guidelines is sought on following points:
1. Whether SC decision Adalat Prasad V Rooplal Jindal is sufficient to get application of Authorised Person dismissed at Trial Court ?
2. What is the correct law whether Proprietorship Firm is a company or not u/s 141 N I Act ?
3. If Proprietorship Firm is a company u/s 141 N I Act, how to deal with SC Decision Raghu Lakshminarayan Vs. Fine Tubes a) at trial Court 2) at High Court u/s 482 3) Whether can be called decision per in curiam on the basis of above
4. Anything else, by which Proprietorship Firm can be recognized a company u/s 141 N I Act
5. Any other guidelines, so that application of Authorised Representative can be dismissed not only at Trial Court level, if necessity arises u/s 482 also.
Madhu Mittal
09 June 2022 at 18:35
A loan was given on the basis of a post dated cheque of Rs. 100000/-, when that post dated cheque was presented in December 2020, cheque was dishonored , notice u/s 138 was issued duly served as per postal track report, and a case u/s 138 was lodged, cognizance taken, Summon was issued and served on the accused by Regd post as per postal track report, thereafter Accused was called by Bailable Warrant which were duly executed. after execution of bailable warrant, on first hearing on 22.04.2022, A banker cheque equal to face value of amount of dishonored cheque was given in the court and accused put the condition of withdrawal of case. Complainant told accused to give interest @ 18% p.a. from the date of dishonor of cheque i.e. 15.12.2020 to 22.04.2022 + prosecution cost. On this accused refused to give more than face value of cheque. Now the hon’ble trial court gave the banker cheque back to accused without taking it on record.
So please let me know whether
1.Is it correct on the part of hon’ble trial court to give it back to accused without taking it record?
2. What should have been done by the complainant on 22.04.2022 ?
3. . What should the complainant do now ?
3. Can an application u/s 216 crpc for adding the offence u/s 422 IPC be made now ?
Any other guidelines , if possible citation also.
Madhu Mittal
01 June 2022 at 22:44
A loan is granted to be repaid in 12 equal installments by taking 12 post dated cheques.
Post dated Cheques for 5th to 8th installments were dishonoured ,so Ist case u/s 138 was lodged for these four cheques.
Post dated Cheques for 9th to 12th installments were dishonoured ,so IInd case u/s 138 was lodged for these four cheques.
In Ist case affidavit of Complainant was duly filed and now case is for examination of accused u/s 313 crpc.
In IInd case “affidavit of Complainant was duly filed or not” is not confirmed, but affidavit is not available in the Court record file, and now case is for examination of accused u/s 313 crpc.
In both the cases, Cross examination of Complainant was already held.
Now at this stage, attention of the court automatically has gone that there is no Affidavit of Complainant in IInd Case.
Now Hon’ble Court is asking to complainant what to do in this position. So please guide, if possible with citation.
Madhu Mittal
20 July 2021 at 12:10
What is the time of starting the time of of offence u/s 138 means:
"Offence under section 138 NI is completed when in spite of notice of dishonour accused fails to make payment within period of 15 days" What is the time of starting of offence u/s 138 means:
1a) whether the time when loan is taken or 1 b) when the cheque is issued/handed over or 1 c).when the cheque is presented in the bank or 1 d). When the cheque is dishonored or 1 e) when the 15 days completes after giving/receiving notice of dishonor of cheque.
Or 1 f) when any act of above five is done ,
Madhu Mittal
18 July 2021 at 13:18
Whether non signatory- active ( nowretired) partner and signatory partner liable u 138 after dissolution of firm
Mr A and B are two brothers having wife Mrs. X and Mrs. Y respectively. They have two partnership Firms.
One “A & co” having partners Mr. A and Mrs. Y. Another one is “B and co” having partner Mr. B and Mrs. X.
Both Firms took loans from a number of persons. Many of them filed cases against them also some cases u/s 138 N I Act , some for recovery of money suit under Order 37 CPC, some Regular Recovery Suits after the death of Mr. A on 30.07.2019.
Specific case:
Both Firms took loan from a lender of Rs. On lac each at different time through Cheque, and on the basis of post dated cheque of Firm signed by Mr. A for “A & co.” and by Mr B for “B & co. for each loan .
post dated cheques were dishonored in July 2021 reason being due
to stoppage of account operation due to death signatory/ partner.
Interest cheques were also given from time to time from the account of firm “A & co” signed by Mr. A from time to time after deducting TDS from interest amount till May 2019.
Interest cheques were also given from time to time from the account of firm “B & co” signed by Mr. B from time to time after deducting TDS from interest amount till May 2019.
Now Development :
Development in the case is that on 30.07.2019, Mr. A expired.
About on 28.09.2029, A paper publication is given by which Mrs. Y retired from the Partnership of “A and co” on the basis of “Partnership reconstituted Deed dated 03.07.219” in which Mrs. Y retired on 03.07.2019 and Mr. B is inducted as new partner on 03.07.2019 notarized as S. no. 500A at Norary Register.
About on 28.09.2029, another paper publication is given by which Mrs. X retired from the Partnership of “B & co” on the basis of “Partnership reconstituted Deed dated 03.07.219” in which Mrs. X retired on 03.07.2019 and Mr. A is inducted as new partner on 03.07.2019 duly notarized as S. no. 500 B at Same Norary Register.
Mr. A expired on 30.07.2019.After his death, business ‘shop is almost closed, Partners do not want to meet Lenders and actually no sufficient fund in bank account.
Now
Thus in my view above both Partnership Dissolved on 30.07.2019 (because there were only two partner before death of Mr. A , if “Partnership reconstituted Deed dated 03.07.219” taken to be true or otherwise also)
1. Now cheque given in reimbursement of loan at the time of taking loan, presented and returned unpaid, whether in “ A & co”, Mrs.Y will be held liable or not u/s 138 N I Act.
2. Now cheque given in reimbursement of loan at the time of taking loan, whether in “ A & co”, Mr. B will be held liable or not u/s 138 N I Act as debt was taken before his entering in partnership.
3. Now cheque given in reimbursement of loan at the time of taking loan, presented and returned unpaid, whether in “ B & co”, Mrs.X will be held liable or not u/s 138 N I Act.
4. As per Notary Act, every document should be numbered serial. So it appears prima facie that “Partnership reconstituted Deed dated 03.07.219” was made after death of Mr. A and to absolve two ladies of family from the clutches of law. Can it be challenged on this ground,
3(a) if Partners can not prove it “genuine” can a case under IPC be filed,or 3(b) it should be disproved by lender for getting them punished in a case under IPC.
5. Can section 420 IPC alonghwith Section 138 N I Act be added as Firms has taken loan from a lot of persons, and not paying them after the death of Mr. A on 30.07.2019, as record was got from the official sight of Court?
Madhu Mittal
09 July 2021 at 20:33
1.A registered legal notice was posted and “report track consignment” was got from the site of Indian Postal , in which it was stated “Item Delivery confirmed”
Date is written on its left corner 25.05.2021 (date of taking track “report track consignment” from the postal sight) and below at the end of report, it is written
“https://www.indiapost.gov.in/_layouts/15/dop.portal.tracking/trackconsignment.aspx”
Whether it is treated Original Document or Secondary Document ?
If Original, no problem, it can be exhibited. If not whether Certificate u/s 65 B Evidence Act to be submitted for getting this exhibited.
Or any other remedy?
2. TDS deducted, but no TDS certificate issued by borrower. So Provisional Form 16A was got from Income tax site.
On left upper side it is written this is provisional TDS certificate
Or right upper side it is written “https://services.tdscpc.gov.in./ser/tapn/prvsnlTdscer.xhtml
Below at the end of page is written:
*Kindly note this is provisional TDS certificate, Final TDS Certificate will be provided by Deductor
Below that on right hand side written date and time of getting this one from the Dept sight.
Whether it is treated Original Document or Secondary Document ?
If Original, no problem, it can be exhibited. If not whether Certificate u/s 65 B Evidence Act to be submitted for getting this exhibited.
Or any other remedy?
3.
Form 26AS , Annual Tax Statement under Section 203AA of the Income Tax Act, 1961
See Section 203AA and second provision to Section 206C (5) of the Income Tax Act, 1961 and Rule 31AB of Income Tax Rules, 1962
The above can be got only from the sight of Income tax by the deductee assessee of Income tax Department sight.
Whether it is treated Original Document or Secondary Document ?
If Original, no problem, it can be exhibited. If not whether Certificate u/s 65 B Evidence Act to be submitted for getting this exhibited.
Or any other remedy?
Thanks with Regards
Madhu Mittal
14 June 2021 at 21:22
Whether is it mandatory to get Partnership Deed (any further deed for introduction of a new partner or retirement of a partner) notarised?
If not mandatory, and it is done additionally without requirement of law. As it is well settled law that notarized deed is to be proved by the person who presents it to be true, and if it is “not proved” notarized as it bears notary register Serial no. 500A and 500B.
1.please guide whether if notarization is not mandatory, and “not proved” its notarisation , still the deed prevails or not as notarization being additional?
2.Or even if not required by law, it is notarized, and “not proved” as notarized, the deed will be null and void ?
Thanks in advance
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At revision level, whether need to make accused parties
Sub: At revision level, whether need to make accused parties when cognizance is not taken against Firm as well as non-signer partners of cheque when averments against all in complaint as well as notices to all, no reply by any partners
A loan of Rs. One lac was given to a Partnership Firm having three partners on the basis of Post dated cheque of Partnership Firm with the consent of all partners. When the cheque was presented for payment on its date, the said cheque is dishonored. A legal notice by Rgd post was given to Partnership Firm as well as all three partners, duly got by them but no reply from any of them. But before lodgment of complaint u/s 138, 12 posted cheques were handed over on behalf Partnership Firm signed by only one partner with the consent of all. When presented all 12 cheques were dishonored, all were dishonored. First 11 complaints were lodged and cognizance for all were taken by the same Trial Court. For 12th cheque, procedure was changed and the court which will deal, was allotted by Chief Judicial Magistrate, so this cheque was dealt by another Court. And that another court took cognizance only of the partner who signed the cheque while there were sufficient averments that at the time of First post dated cheque and at the time of taking 12 post dated cheques, all partners were incharge and responsible for working of the Firm and all are involved both time when loan is given + one post dated cheque was given and when second time 12 postdated cheques were given . Thus cognizance against Firm and remaining two partners were not taken. Aggrieved by this new court, Revision was filed in ADJ court making only Govt of Rajasthan as Respondent. Citation of Supreme Court Micromax_Informatics_Limited_vs_Meenu_Goyal_on_12_March_2021 sc (in which it is stated only averments in complainant to be seen at the time to taking cognizance, even reply given by accused was not to be seen ) and citation of Bommidi Madhu Sudhanrao vs. Kallapu Ramesh and Anr. (09.11.2010 - APHC) of Andhra Pradesh High Court (it was stated at point 3. Though notices are sent to the Respondents 1 and 2 the same are not returned unserved. However as the point involved in the present case is between the court and the Petitioner, this Court is of the view that there is no need for this Court to hear the Respondents 1 and 2.) was handed over to ADJ Court, but ADJ Court insisted that Firm as well as all partners should be made Respondents.
Now what I want to know is that when even reply of accused not to be seen at the time of taking cognizance as per above SC ruling and matter is between Court and Complainant at the time of Cognizance, How to pursue ADJ Court not to insist to make Firm and partners as respondents as there will be of no use of them whatever they say, only averments in the complain to be seen. Any citation.