mehmood (proprietor) 17 October 2012

Criminal case under ni act 138

Dear Sir,

I had issued cheques to oen of the party and the said cheques were bounced due to insufficeinet fund in my account and now party has filed criminalc ase under ni act 138 in metropolitan magistrate cheque bouncing court in the year 2011 and since then i have beenattending court few times and taking adjournments now matter will come up for hearing in metropolitan court the main issue is that i had partnership firm i and my wife were the partners in that firm and i has issued the cheque to the party all cheques were duly signed by me only and my wife has never signed any cheque now party has filed criminal suit in court against me and my wife just to pressurise me and that is why my wife has been dragged unnecessarily for no fault of her as she is house wife and sleeping partner she is non where invoilved in any business deals i have filed one writ in the mumbai highcourt in the name of my wife as applicant in the month of march we have filed writ peitition challenging mazgaon court for admitting my wife as accused but till now matter has not come on board in the highcourt for hearing and every month adjournment is given and now matter is very critical as mazgaon court magistrate is forcing or hearing of the case so can you please assit whether i can challenge mazgaon court to dismiss my wife as accused in this case as matter is pending with high court kindly reply me thru email it would releave my mental stress as well as my wife also willbe mentally relaxed as she is severe asthamatic she gets ashtham attack some time due to this crminal case and mazgaon court magistrate is not considering her health ground and also i am a severe heart patient too but even then mazgaon court magistarate is not consdiring oru health status sympethetically can you guide me whethere there are chances to get exemption of my wife from this criminal case

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3 Replies

Bhawani Mahapatra (Law Officer) 17 October 2012

Dear Mehmood

You have no option left but to wait for the direction/order of the Honb'le Bombay High Court and pendency of a writ petitiion relating to the criminal proceeding u/s 138 NI Act, in absence of any interim order cannot stop the Metropolitian Magistrate to hear the case in his hand.

There is no seperate view of the court in this regard for a sick/ailing accused nor any excuse is considered on the poor health ground of the accused. At best you can apply u/s 205 Cr.P.C for dispensing with the personal attendance of your wife stating her poor health, and if permitted she may not be required to attend the court.

Niikhil C. Shirgaonkar (Self Employed) 17 October 2012

As told by Mr.Bhawani in absence of an interim order of High court you can not ask the magistrate to stay the case pending before him. Moreover eventhough the your wife is sleeping partner in your frim, the liability of Partnership firm is joint and several and hence your wife can be made party to the said case. However considering the health problem of your wife you can ask for permanent exemtion for you wife to attend the court so that she does not need to attendthe court on every date. You can file the aplication with magistrate court statig that your wife is not responsible for day to day mangement and business of your firm and she was no in charge any affiar of your firm at the time of issuing the cheques under dispute and hence she may dischared from the case. If magistrate is satisfied with your contnetion, he may discharge her. However as mentioed above the fact of joint and several liability may become an obstacle for you while praying this relief.

YOGESHWAR. (ADVOCATE HIGH COURT-criminal /civil -youract@gmail.com) 17 October 2012

1) Instead of complaining on minor issues of health etc you should contest the case on legal issues.

2) Once the cheque is issued and bounced by partnership firm all partners are liable.

3) Even Member of Parliament like AZRUDDIN and MALYA has to face NBW from courts.

4) Higher courts do not entertain such in between applications.

5) You must appoint a dedicated advocate who had won the cases in cheque matters, than only you can come out otherwise the procedure for cheque bounce is short .