138 ni act 420ipc charge alter

You have given many stories of cheque bounce cases so it is not clear whether you are advocate for accused or accused.

Cheque bounce cases need specialised skills and in most case the advocates who have expereince of civil cases handle the cases and loose.

In this case it seems a dud cheque was given and got some facilities.

So if the accused had called the bank to show there was no account will surely attract  IPC 420 and even other sections.

However even at  this late stage before closing the defense the complainant can be called for further cross and it can be proved  by clever cross that no cheque was given at all. The cheque case can be demolished so all problems of further action can vanish.

Far proper line of action complaint , documents and examination in chief evidence has to be seen.

The application under S.420 shall be dismissed at this later stage, it is quite improbable that any evidence would have come forward which would warrant inclusion of s.420 IPC, the admission by prosecution that there was no transaction between 2009 to 2012 is good point in favor of accused.

Regarding S.138, if the account is not of accused, then surely he is out, moreover if you state what is the liability stated by complainant, then further help can be extended.

Please note on the strict technical terms case against proprietorship firm is not maintainable, simply because proprietorship firm is not a legal entity, so proprietor should be made accused. You should argue this as well if his name is not there as stated by you. 

Bookish knowledge arguments do not work in  actual cases in courts.

1) Read what APEX COURT  has said in 2012.

27. Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 N.I. Act and the case is sub judice before the High Court. In the instant case, he is involved under Sections 406/420 read with Section 114 IPC. In the prosecution under Section 138 N.I. Act, the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved.

However, in the case under IPC involved herein, the issue of mens rea may be relevant. The offence punishable under Section 420 IPC is a serious one as the sentence of 7 years can be imposed. In the case under N.I. Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque.

Such a requirement is not there in the offences under IPC. In the case under N.I. Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under N.I. Act can only be initiated by filing a complaint.

However, in a case under the IPC such a condition is not necessary.

28. There may be some overlapping of facts in both the cases but ingredients of offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions. The appeal is devoid of any merit and accordingly dismissed.

….....…….……………………..J.

  SUPREME COURT  New Delhi,

April 23, 2012

ALSO YOUR DEFENSE THAT FIRM IS NOT MADE PARTY HAS ALSO BEEN REJECTED BY RECENT JUDGMENTS AND ONLY DRAWER OF CHEQUE IS HELD LIABLE.

So, Mr Dilabaug,

1.

What does the above order of supreme Court says ?? 

For your understanding it says that cases under S.420 IPC and S.138 of NI act are different in nature and of course there is not bar or limitation as far as S.420 IPC is concerened. Thats perfectly all rightly. 

The point is what if application is moved at the fag end of the trial under S.138 NI Act for including S.420 Charges ? If you have understood the above case law by SC then answer is obvious : That such application is not maintainable....Got it ?

2. About firm

with respect to cheque of private limited or  limited company, if the company is not made accused and only drawers are called, the case fails. Hope you kbow this.

Regarding proprietorship firm, as I used the word strictly, if the proprietor is not made accused, then case must fail, but courts have come out with some absurd explanation (in violation of general cause act) that the propritorship firm is the name of proprietor and allowed such cases. 

So Mr Dilbaug : How do you call the complainant again at the time of final argument for re cross examination, move a simple application, yeah !!? As if courts are waiting for your applications.

Thus, in the light of the position which the respondent in the present case held, we are of the view that the respondent be made liable under Section 138 of the NI Act, even though the Company had not been named in the notice or the complaint.

 There was no necessity for the appellant to prove

that the said respondent was incharge of the affairs of the

company, by virtue of the position he held. Thus, we hold that

the respondent is liable for the offence under

Section 138 of the NI Act.

We, therefore, award compensation to the extent of twice the

cheque amount and simple interest thereon at 9% per annum

to the complainant. Accordingly, the respondent

is sentenced to undergo simple imprisonment for a period of

five months for the offence under Section 138 of the NI Act.

Considering the fact that the cheque amount is Rs.74,200/-,

we direct the respondent to pay a compensation

of Rs.1,48,400/- (Rupees one lakh forty-eight thousand four

hundred only) with simple interest thereon at 9% per annum,

to the complainant-appellant. In default of payment of the said

compensation, the respondent will have to undergo simple

imprisonment for a period of six months.

15. Accordingly, this appeal is allowed and the impugned

order passed by the High Court as also the order passed by

the Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai

are set aside.

 We direct that the respondent shall be taken into custody forthwith to undergo the sentence.

New Delhi;  Supreme court of India.  July 06, 2015.

Mr. Dilabaug,

Nice try, you seem to be fooling people around, you cut paste the above part without giving the details about the case........Why did you not give the case name ? simply because your falsehood and mis interpretation would have been trapped........

I am giving you the required part why SC convicted him without company being made as accused...Read below and apologize to this forum for spreading misinformation.

Mainuddin Abdul Sattar Shaikh vs Vijay D Savli on 6 July, 2015

............The cheque was drawn by the respondent in his individual capacity and not in the capacity as a Director of M/s. Salvi Infrastructure Pvt. Ltd. or as Proprietor of Salvi Builders and Developers............

Link:

https://indiankanoon.org/doc/74482908/