sita ram s (proprietor) 16 January 2015

Please help me in 138 ni lower court judgement

Hi Sirs and Friends,

Hoping that you all are fine and doing well.

Myself is the complainant and sole proprietor of one firm. I filed 138 NI in lower court and judgment came against me, even complaint is genuine and all the payments made to accused through bank transactions. In last, reply arguments one memo submitted by my advocate which was mentioning all the exhibits in tabular form for better understanding to the judge as accused submitted so many evidences during DW1 stage.

Here is the summary of the judgment.

Point for consideration is whether the complainant proved the guilt of the accused beyond all the reasonable doubt for an offence punishable U/s 138 of N.I. Act?

The answer to the point is NEGATIVE. The complaint shall fail on three grounds. They are:

GROUND NO. 1:

1. Complainant is not payee or holder in due course of the subject cheque Ex. P2 and therefore complainant is not competent to file the complaint.

-Referred Sec. 142 (a) of N.I. Act Cognizance of offences: -Notwithstanding anything contained in the code of criminal procedure, 1973 (2 of 1974).

-In the case of ‘Milind Shripad Chandurkar Vs. Kalim M. Khan and another reported in AIR 2011 Supreme Court 1588, at Para Nos. 21, 22, 23 & 24 of the said judgement.

My Exhibits proved:

a. The amount transferred from my account, for which statements marked under exhibits.

b. In accused’s promissory note my name, my firm name mentioned.

c. In one of the exhibit my name as proprietor along with firm name mentioned.

My Questions:

1. What steps to be taken further? either should I go for appeal, If so, can I submit more documents in sessions court or can we demand to send summons to bankers for verification the proprietor’s ship matter?

2. Can I reopen the case in session ACMM Court?

3. What are supreme court citations, judgements to support my case?

GROUND NO. 2:

2. The amount of Rs. 25,00,000/- was given by the complainant to the accused as his share of investment in the business X Y Z Pvt. Ltd. but not as hand loan.

Referred: NIL no reference, citations, judgments or act, etc.

My Exhibits proved:

a. The MOU between accused and complaint showed that there is no ‘investment’ word used. But in legal lawyer notice, court complaint this ‘investment’ word mentioned come places.

b. Accused took money from complainant for processing the loan of X Y Z Pvt. Ltd. but accused didn’t process the loan at all. In this regard Complainant took letter from X YX Z Pvt. Ltd. stating that loan not processed.

c. Accused used this money for his personal loan purpose not for X Y Z Pvt. Ltd.

My Questions:

1. What steps to be taken further? Either should I go for appeal, If so, can I submit more documents in sessions court? Or can I reopen the case in session ACMM Court?

2. What are supreme court citations, judgements to support my case?

GROUND NO. 3:

3. Return of the subject cheque Ex. P2 by the bank as unpaid is not proved legally.

- Referred 146 of N. I. Act

- That certificate of Ex. P2 is contrary to Sec. 2 (8) (c) and Sec. 2 A of the Bankers’ Books Evidence Act, 1891

My Exhibits proved:

a. Accused cheque was CTS and multicity cheque. On the cheque the following mentioned: “Payable at par all branches of State Bank”

“Multicity cheque is payable up to a maximum of Rs. 10,00,000/-“

When I deposited the cheque, I got cheque return memo (computer generated memo) stating “Exceeds Arrangement”.

b. I submitted the same memo in the lower court as received by me from the bank. But Judge of lower court didn’t qualify the ‘cheque return memo’, because it was computer generated and not having the bank seal and sign.

c. Judge also raised objection about the monitory value of cheque limiting to Rs. 10,00,000/- but the cheque amount was Rs. 23,50,000/-

My Questions:

1. What steps to be taken further? Either should I go for appeal, If so, can I submit more documents in sessions court? Or can I reopen the case in session ACMM Court?

2. What are supreme court citations, judgements to support my case?

3. What is the meaning of “ Exceeds Arrangement” in this particular case?

FINALLY I REQUEST YOU ALL TO HELP ME OUT OF THIS SITUATION. AFTER THIS JUDGEMENT I THOUGHT OF COMMITTING SUICIDE. EAGRLY AWIAITING FOR HELPING SUPPORT. PLEASE SAVE ME FROM THE ABOVE ISSUE.

THANKS.

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2 Replies

T. Kalaiselvan, Advocate (Advocate) 17 January 2015

Being a complainant, an appeal will lie only before the high court. You can project all the grievances properly and prepare the memorandum of appeal by pleading strong grounds and prefer the appeal. You cannot produce additional documentary evidences in the appeal but can plead that the lower court has erred in considering your plea for proving your case. Be n touch with your lawyer or change the lawyer and proceed through another lawyer.

YOGESHWAR. (ADVOCATE HIGH COURT-criminal /civil -youract@gmail.com) 17 January 2015

First of all you were contesting a criminal case on lines of civil case. It seems your advocate was not at all conversant with the cheque law and its procedure.

I do not want to depress you but it is warning to all complainants that if there is well informed advocate for the accused it is easy to win any cheque bounce case.

Now at this stage instead of wasting time in HIGH COURT where it is not certain you can AFFORD and select an advocate who had brought results so it is better to file a civil case for recovery which will be fast and sure.

ONLY PROBLEM WILL BE DELAY IF THE CHEQUE IS MORE THAN THREE YEARS OLD.

If you can show the complete file there is slim hope that some where in the trial or plea or 313 statement some admissions are given by the accused which your advocate could not use for the benefit of the case., since from your details it is clear that the case was conducted as civil trial and not criminal summons case.