Defense questions in 138 N.I.Act Case.
Querist :
Anonymous
(Querist) 22 July 2011
This query is : Resolved
Question 1: Whether the Instant complaint u/s 138 N.I. Act is maintainable?
Consider the following:-
Filling of complaints in two different jurisdictions for very same cheques.
(a) Cause of action has been decided by the complainant about said cheques accordingly complaint was filled u/s 420/406/468/471/120B IPC before the magistrate in South 24 Parganas.
(b) Later another complaint was filed u/s 138 of N.I.Act by the complainant regarding same very cheques but in a different jurisdiction than the earlier decided jurisdiction i.e. before the Magistrate in Kolkata.
Complaints filed regarding the same very cheques in two different jurisdictions not questionable?
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Question 2: Whether a case under section 138 of N.I. Act is maintainable?
Consider the following:-
(a) According to the statement of the accused, these cheques were issued NOT for the discharge of the debt or other liability but these cheques were issued as a part advance/loan to the complainant by the accused as per the understanding of a particular partnership business AT WILL, where the accused and the complainant both are deemed to be partners.
(b) Statement of the accused that the complainant fixed date on the undated cheque without the knowledge and consent of the accused then presented them.
Are not validity of the case questionable as the date of this cheque has been altered by the complainant to the prejudice of the accused?
(c) A police case u/c 420/406/43 IPC filed by the accused support all the above said observations in his favour.
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Question 3: Whether the Instant complaint u/s 138 N.I. Act is maintainable?
Consider the following:-
(a) Time barred - since, the complaint was filed by the said complainant much after two months from the date concerned notice was received by the accused?
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For Reference:
Case History:
Content of a criminal complaint states that
(a) the accused is known to the complainant since last 4-5 years
(b) that the complainant invested money to an unregistered business (through an
unwritten agreement) against a share of 3% profit per month (obviously the business were to be carried on by the accused on behalf of all members), the complainant also alleged.
(c) that the
full investment were returnable to him after expiry of one year (this also through an unwritten agreement)
(d) that the complainant made said investment to said unregistered business
through cheques in the name of the accused.
(e) that after making said investment complainant received his share of 3% profit for almost one year (but now he preferred to term said profit as
interest)
(f) many days after making said investment the complainant demanded documents
from the accused about the business where his money has been invested
(g) the complainant further alleged that after receiving some documents from the accused, he grew suspicion in the accused and that after expiry of one year accused did not refund him said money, he also
arranged a telecast against the accused
(h) meanwhile the complainant forced the accused and received two undated cheques but amounting lower than the invested amount,
(i) the complainant therefore filed criminal complaint u/s420/406/468/471/120B IPC against the accused involving said cheques issued by the accused and other grounds (j) he also filed another complaint u/s 138 of N.I. Act involving the very same cheques to a different jurisdictions.
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On the other hand
(i) the accused denied giving any business documents to the complainant even before accepting said investment or later and they are falsely made by the complainant,
that there is ups and downs in the business and he himself too invested in same business. He has been maintaining all verbal understanding with the other member related to the concerned business. In an earlier occasion,
(ii) the accused was also compelled to file a complaint against said complainant u/s 420/406/34 IPC in response to a telecast firstly arranged by the same
complainant which was also based on false statements,
(iii) for not admitting a loan in said
telecast taken by said complainant equivalent to the 3/4th of the amount of his investment said.
(iv) for forcing said undated cheques for further loan and inappropriately presenting them by putting dates on these cheques by same complainant.
(v) for destroying common business and
injuring said accused reputation
(vi) said complaint of the accused was converted into F.I.R. later but only after communication with the police superintendant that too after his release on bail from the relevant investigative detention.
(vii) That the business in question is a joint business and he being competent; the business was carried on by the accused on belief of other member. Every month the complainant is entitled to avail loan from the accused at a rate of 3% on his investment but payable on condition till the loan amount taken by the complainant would become equivalent to his investment, thereafter, total amount of said loan taken would be settled/adjusted with the respective investments and the asset of the business would be liquidated to the members proportionate to respective investments but said complainant injured
the business when it needed its member's support most.
