Ch of 3rd person-138 nia in discharge of legal liability

Your opinions are misconceived . The magistrate very much has the power to send the said cheques for examination before a fingerprint and handwriting  expert. However the need to do so will only arise when the said handwriting is a relevnt fact.

As far as your problem goes, kindly elaborate as to who the signatory of the cheque is. If the signatory of the cheque is not the person who has been impleaded as an accused, then the said case shall fail.

When we discuss Law Let us discuss with the appropriate Legal Backing of the law or Case Citation

I say that the Magistrate has no Powers to refer a document to Handwriting expert under Section 73 or 45 of The Indian Evidence Act

If U say that he has such Powers, Pl substantiate your answer with the relevant  Section Under which Section Mr Augiustine?

If the accused says that the account itself is not his, thats sufficient. There is no need for any handwriting expert etc.......all stories of complainant...however truthful....fail, if the account is not of accused.....S.138 is applicable only against the drawer who maintains the account in his name.....

The query is not clear. It has been stated that father of the accused issued the cheque. Is it disputed whether the cheque was issued by the accused or his father? If it is not disputed then the question that will come is whether the accused can be prosecuted as he did not issue the cheque. Or can the father be prosecuted as he had no liability towards the complainant. On whose account the cheque was issued can be easily checked with the bank. No handwriting expert is necessary. Call the bank representative as witness.

The cheque will not come under the definition of holder in due course.

LET ME MAKE THE THINGS CLEAR

1.The Cheque belongs to the Father of THE accused

2. The Ch was issued and signed by the Father of the accused only but the Cheque was handed over by the accused to the complainant

3. While handing over the Cheque the accused conveyed an impression that itis his own Cheque

4.There was no reason for the complainant to doubt as the signature on the Ch contained the same name "MOOLCHANDANI" which was the surname of the accused

5. The accused did all this with a nefarious design in his mind since begining and when the case came for defence evidence he came up with the plea that the cheque is not his

6. Had the accused told the Complainant that the Ch is of his Father, the Complainant would have given notice to his Father

 

COMMENTS OF LEARNED FRATERNITY ARE INVITED IN THE ABOVE SITUATION

IF THE ACCUSED AND BOTH HIS FATHER CANNOT BE HELD GUILTY IN THE MATTER IT WOULD AMOUNT TO A REWARD FOR THE FRAUD COMMITTED BY THE ACCUSED AND HIS FATHER

I understand the case like this: A father draws a cheque in favour of the Complainant in discharge of the liability incurred by his son towards the Complainant. The Complainant names the son as the accused in the case. The accused son claims that the cheque was not drawn by him but by his father. Further he says that the fact can be ascertained by verifying the handwriting. The challenge given by the accused appears funny. Where is the question of handwriting here? If the accused means the handwriting of the person who wrote the date, the name of the payee and/or the amount, that is irrelevant. They could have been written by anyone. What matters only is as to who signed the cheque and whether the signature matched with the specimen signature maintained by the bank. It is presumed here that the bank has not returned the cheque because of any discrepancy with regard to signature. If what is to be ascertained is whether the father drew the cheque on his own account with the bank, it can be checked with the bank itself. The question of handwriting is irrelevant here. Now let us assume that the cheque was drawn by the father. It could have been done in one of the two ways. 1. The father draws the cheque in the name of his son and the son endorses it in favour of the Complainant or 2. The father draws the cheque directly in the name of the Complainant and hands it over to his son. The son in turn gives the cheque to the Complainant. In the first case the Complainant is holder in due course of the cheque and such a case is well covered under Section: 138. The second case is not mentioned under Section: 138. But the liability of the father is more than that if the Complainant were holder in due course of the cheque. In the former case the father has not given the cheque to son in discharge of any liability. He may not even know for what use the cheque may be put to by the son He may not know the Complainant at all. Still he is liable. In the latter case he has drawn the cheque in the name of the Complainant, thus knowing or at least having reason to know what the son shall be doing with the cheque. Hence the father and son due are not only liable under Section: 138 N. I. Act, but also under Section 120A, IPC, criminal conspiracy. The calibres of the lower court judges are very poor and hence you may not get justice. You may have to go to higher court.

Dr Ramani, whatever said and done........in this case, the son is out free at least under S.138, and due to timeline father also cannot be rope in as accused.

 

Only remedy is civil recovery....S.420 can be explored...

Dr Ramani Thank You for tthe crisp Analysis

LET ME MAKE THINGS MORE CLEAR

HERE A father draws a cheque in favour of the Complainant in discharge of the liability incurred by his son towards the Complainant. THE CATCH IS THAT THIS FACT WAS KNOWN ONLY TO THE FATHER AND SON THAT THE CHEQUE BELONGS TO THE FATHER (tHIS WAS A CONSPIRACY INBETWEEN THE  FATHER AND SON AND THIS CONCLUSIVELY PROVES THE MENS REA WHICH WILL BE USEFUL WHEN THE COMPLAINANT GOES FOR 420/120B The Complainant names the son as the accused in the case BECAUSE THE ACCUSED GAVE THE CHEQUE TO TEH COMPLAINANT AS HIS OWN CHEQUE. NATURALLY THE COMPLAINANT COULD HAVE NOT ANTICIPATED THE MISCHIEF THAT WAS PLANNED IN THE MIND OF THE FATHER AND SON . LATER ON The accused son DOES NOT CLAIM THAT THE that the cheque was not drawn by him but by his father BUT HE CLAIMS WORSE. HE SAYS THAT THE CHEQUE IS NOTHING AND PRETENDS THAT HE IS NOT AWARE WHOSE CHEQUE IT IS! AND MAKES AN APPLICATION TO THE COURT U/S 311 CRPC URGING THE COURT TO GET TEH DETAILS FROM THE BANK. THE COURT REJECTS HIS APPLICATION!

NOW HE HAS FILED A IIND APPLICATION he says that the fact can be ascertained by verifying the handwriting. CORRECT! The challenge given by the accused appears funny.

HERE THE SITUATION IS THAT  2. The father draws the cheque directly in the name of the Complainant and hands it over to his son. The son in turn gives the cheque to the Complainant. BUT DOES NOT DISCLOSE THIS FACT TO THE COMPLAINANT THAT THE CHEQUE IS OF HIS FATHERll HAD THIS BEEN DISCLOSED TO THE COMPLAINANT , THE COMPLAINANT WOULD HAVE GIVEN NOTICE TO THE DRAWER ALSO

WE ARE IN SITUATION (2) AS U SAID In the latter case he has drawn the cheque in the name of the Complainant, thus knowing or at least having reason to know what the son shall be doing with the cheque. Hence the father and son due are not only liable under Section: 138 N. I. Act, but also under Section 120A, IPC, criminal conspiracy. 

SURE THE DUO QUALIFY FOR 420 & 120B BUT WHAT HAPPENS OF 138?

AS sir trivedi SAYS! "Whatever said and done........in this case, the son is out free at least under S.138, and due to timeline father also cannot be rope in as accused BECAUSE BY NOW ALL TEH DEADLINES ARE OVER

only remedy is civil recovery....S.420 can be explored...

 

WHAT DO U SAY DR RAMANI ABOUT 138

I AM SURE THAT DESPITE THIS PECULIAR SITUATION THE ACCUSED WILL NOT BE ABLE TO GET OUT OF 138, THOUGH HE WOULD FURTHER BE IN FOR 420 & 120B

I NEED UR VALUEABLE COMMENTS

I do not know anything about the applicability of law of limitations in this case. But I believe that all time limits within Section: 138 are adhered to. Further Mr. Ashok Kumar has not stated anything with regard to dates of various actions and events in the case. I very much assert that both father and son are still liable under Section 138 of NI Act. Judgments are not delivered based purely on words and sentences in the law. It is the intent that matters. Otherwise there would have been no need for human beings as judges. A computer would have been sufficient. Now let me analyze culpability under Section 138. The requirements of the Section are: 1. Cheque drawn by a person (the ‘to be accused’) on an account maintained by him. 2. The cheque is returned by the bank for insufficiency of funds in the account or the amount exceeding the arrangement made there for, 3. The cheque is in the name of the payee or he is holder in due course of cheque (the ‘to be complainant’) 4. The ‘to be Complainant’ gives notice to the ‘to be accused’ to pay the amount within 15 days and the ‘to be accused’ fails to pay. 5. The cheque was issued in discharge of a debt or liability. In this case condition No.1 is not satisfied. Condition No.2 is probably satisfied. Condition 3 is satisfied. Condition No.4 is presumed to be satisfied. Condition 5 is presumed to be satisfied. If the reason was that the accused did not issue the cheque, why did he not say so when he received notice under condition No.4? Hence now he cannot claim that condition No. 1 was not satisfied. I am showing here how courts are interpreting Section:138 even when the Section does not contain the exact words: “Stop cheque instruction” is not covered under condition No.2. Still, courts have held the accused guilty when the cheque bounced due to “stop cheque instruction”. I am pointing this out just to say that even when words and sentences are missing the import or intent of the words already there have to be taken into account. As for condition No.1, the ‘father and son duo’ should be taken as one for the purpose of law. They have acted in concert. Their common intent is clear. It is to cheat the Complainant. The accused has made an attempt to bye-pass condition No.1, by the simple expedient of getting the father issue the cheque on behalf of the son. Hence both are liable under Section 138. They cannot be allowed to escape. The Complainant may have to go to higher court to get justice.

Mr. Ashok Kumar says: "LATER ON The accused son DOES NOT CLAIM THAT THE that the cheque was not drawn by him but by his father BUT HE CLAIMS WORSE. HE SAYS THAT THE CHEQUE IS NOTHING AND PRETENDS THAT HE IS NOT AWARE WHOSE CHEQUE IT IS! AND MAKES AN APPLICATION TO THE COURT U/S 311 CRPC URGING THE COURT TO GET TEH DETAILS FROM THE BANK. THE COURT REJECTS HIS APPLICATION! " What was the reply of the accused when he received the notice under condition No4 cited by me? If he did not reply at all that is also a point against him. I again say that you have to go on appeal to the higher court. Presenting the arguments properly is also important. I still say that he can be caught under Section 138.

DR RAMANI I AM IN TOTAL AGREEMENT WITH YOU AND THIS IS HOW I AM ALSO TAKING IT

THERE HAVE BEEN CASES WHERE THE THIRD PARTY (TERMED AS GUARANTOR) WHO ISSUED THE CHEQUE FOR A PERSON HAS BEEN HELD RESPONSIBLE BUT THERE THE NOTICE WAS ISSUED TO THE THIRD PERSON AS THE COMPLAINANT KNEW THAT  THE CHEQUE WAS ISSUED BY THAT "THIRD PERSON"

HERE THE ACCUSED SEEMS TO BE A METICULOUS PLANNER!!

BUT MR RAMANI THANK U VERY MUCH 

I WILL KEEP THE DEVELOPMENTS POSTED IN THIS FORUM

THIS WILL BE A GOOD CASE FOR ALL TO SEE 

You have not reported when the accused disowned the cheque, what was the response of the Complainant or his lawyer. Did they passively watch what was happening in the court and allowing the accused to do all the talking. If the accused disowned the cheque, the Complainant should have prayed to the court to order the police to find out the real author of the cheque, produce him in the court and ask him to explain the nexus among himself, the accused and the Complainant through the cheque. The burden of proof here is that of the accused. It is unfortunate that courts perform perfunctorily with no application of mind.

ADDITIONAL FACTS / CLARIFICATIONS

 

THE  CASE WAS INSTITUTED 8 YEARS BACK

THE ACCUSED NEVER REPLIED TO THE NOTICE OR RAISED THIS CONTENTION ANYTIME EARLIER. THE CASE WAS POSTED FOR DEFENSE EVIDENCE . AT THAT POINT OF TIME THE ACCUSED MADE AN APPLICATION TO THE COURT U/S 311 CRPC URGING THE COURT TO GET THE DETAILS FROM THE BANK PRETENDING THAT HE WAS NOT AWARE WHOSE CHEQUE IT IS AND IT IS NOT HIS CHEQUE

THE COURT REJECTED HIS APPLICATION!

NOW HE HAS FILED A IIND APPLICATION REQUESTING THE COURT TO SEND FOR HANDWRITING EXPERT