Accused Under 138, Wants To Start Proceedings Under 340
Naresh
(Querist) 13 February 2015
This query is : Resolved
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Naresh
(Querist) 13 February 2015
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Naresh
(Querist) 13 February 2015
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Naresh
(Querist) 13 February 2015
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Naresh
(Querist) 13 February 2015
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DEFENSE ADVOCATE.-firmaction@g
(Expert) 13 February 2015
The accused in cheque cases make basic mistake of using defense help who have never won any cheque case and conduct the cases like civil cases.
1) No 340 case can be made out. Read case laws in this matter. You can even search this site alone where you will get stories of failure of 340 in such cases.
2) PRAY GOD THAT YOUR OPPONENT DOES not HAVE KNOWLEDGE OF RECENT APEX COURT CITATIONS IN CASES SIMILAR TO YOU.
SINCE- a) issuer of cheque is also liable.
b) Cheque bounce itself is offense under cheque law.
c) It is not a civil case for more or less value of cheque. There was opportunity to the accused to settle the matter after reciept of notice.
d) Accused has to prove that there was no legal dues at all.
EVEN AT THIS LATE STAGE SEARCH THE TECHNICAL MISTAKES IN THE COMPLAINT AND DOCUMENTS OF THE COMPLAINANT AND SIGLE OUT DEFENSE ON THOSE ISSUES.
Naresh
(Querist) 13 February 2015
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Naresh
(Querist) 13 February 2015
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Naresh
(Querist) 13 February 2015
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Nadeem Qureshi
(Expert) 13 February 2015
Dear Naresh
The complaint is liable to be dismissed first based on the security cheque which is not come under the N.I. Act.
secondly, if he admitted that the liability is not as mentioned in cheque then the complainant is doing an offence for perjury and as an offence u/s 193 & 464 of IPC.
IMMEDIATELY file a complaint u/s 340 of Cr.P.C. before trial court where the matter is pending.
feel free to call
Rajendra K Goyal
(Expert) 13 February 2015
From the given facts you have a good case in your favor.
May file case u/s 340 Cr. PC.
Naresh
(Querist) 13 February 2015
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Naresh
(Querist) 14 February 2015
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Devajyoti Barman
(Expert) 14 February 2015
you are advised enough.
now if you want more then take professional service .
Naresh
(Querist) 14 February 2015
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prabhakar singh
(Expert) 14 February 2015
PERHAPS SOME THING IS BEING MISCONCEIVED HERE.
IF ADMISSIONS IN CROSS EXAMINATIONS WOULD BE TAKEN TO BE CONSIDERED AS PERJURY,THEN ALL ACQUITTALS WOULD DEMAND PROCEEDINGS UNDER SECTION 340,AND THAT IS NOT THE OBJECTIVE.
Naresh
(Querist) 14 February 2015
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prabhakar singh
(Expert) 14 February 2015
Dear Mr.Naresh!
I am sorry to hold opinion that does not suit you.
But if I take all you have stated to be correct on its'very face,the logical consequence is your sure shot ACCUITAL.
BUT ONCE AGAIN I VIEW THAT NO CASE OF PERJURY IS MADE OUT BECAUSE HE DID NOT PROSECUTE YOUR WIFE AS PROPRIETOR OF THE FIRM AND PROSECUTED YOU ALONE AS AUTHORISED SIGNATORY OF THE FIRM.
I AM SORRY IF MY VIEW DOES NOT SUIT YOUR PURPOSE.
Naresh
(Querist) 14 February 2015
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Naresh
(Querist) 14 February 2015
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Naresh
(Querist) 14 February 2015
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Guest
(Expert) 14 February 2015
Dear Mr. Naresh,
The information you posted, "there Are Three Experienced Advocates From My Side For This Case," in itself reveals that you are afraid of some hidden fear or concern, but neither you have revealed what is your real worry, nor what your own three advocates hold about your concern on sec.340.
In spite of all that you still want more and more discussion, while you believe that "the Complainant Is Playing Very Dramatacilly With Intentions Of Cheating ....... If you believe that the complainant is playing drama only, you shoul come out frankly, what really is the cause of fear for you?
Better be aware, any more open discussion on this open forum may bring you in great soup, as on the basis of the facts explained by you, I have totally different views (may not be in your favour) as against the views of some other experts.
So, even if by hiring services of three lawyers you are still not satisfied, better consult privately with some other expert by revealing your specific concern or fear along with the opinion of all of your three lawyers.
I am however surprised to note that as per your profile you are the proprietor, while you have stated your wife to be the proprietor. The question arises, have you stated the related facts in full by not hiding any vital part of information?
Naresh
(Querist) 14 February 2015
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Guest
(Expert) 14 February 2015
Mr. Naresh,
When you don't have any fear or concern and you have three lawyers to defend you, better have faith in all the three of your lawyers unless they have some difference in opinion, rather than discussing your case openly. Otherwise, negative aspects of the case may get revealed, which may not be in your interest, as I apprehend.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 15 February 2015
It is real sensible thing you have done MR NARESH that you have deleted your query and all your arrogant responses.
Even otherwise being a defense advocate I feel to educate all the accused and their lawyers that offense never pays in at least cheque cases.
I am giving below the experts from recent SUPREME COURT cases in cheque bounce matters.
1) In the said judgment this Court ( SUPREME COURT ) has referred to the nature of liability which is incurred by the one who is a drawer of the cheque.
If the cheque is given towards any liability or debt which might have been incurred even by someone else, the person who is a drawer of the cheque can be made liable under Section 138 of the Act.
IN THIS MATTER ACQUITTAL BY LOWER COURT AND EVEN CONFIRMED BY HIGH COURT WAS SET ASIDE AND ACCUSED CONVICTED BY SC.
2) The judgment clearly held that the presumption under Section 139 of the Negotiable Instruments Act, 1881, includes the presumption of the existence at a legally enforceable debt or liability. That presumption is required to be honoured, and if it is not so done, the entire basis of making these provisions will be lost.
Therefore, it has been held that it is for the accused to explain his case and defend it once the fact of cheque bouncing is prima facie established. The burden is on him to disprove the allegations once a prima facie case is made out by the Complainant.
23RD JULY 2013.
3) three-Judge Bench of this Court ( SUPREME COURT ) has HELD that failure of the drawer of the cheque to put up a probable defence for rebutting the presumption that arises under Section 139 would justify conviction even when the appellant drawer may have alleged that the cheque in question had been lost and was being misused by the complainant.
New Delhi; November 27, 2012
FURTHER ON AUG 2014 The Supreme court has confirmed a KERALA HIGH COURT observation of 2007 as below=
High Court of Kerala has, in our view, correctly interpreted Section 138 of the Act it said:
“It is evident from the language of Section 138 of the N.I. Act that the drawer is deemed to have committed the offence when a cheque issued by him of the variety contemplated under Section 138 is dishonoured for the reasons contemplated in the Section.
The crucial words are "is returned by the bank unpaid". When that happens, such person shall be deemed to have committed the offence. With the deeming in the body of Section 138, the offence is
already committed or deemed to have been committed.
A careful reading of the body of Section 138 cannot lead to any other conclusion.
SO EVEN AT THIS LATE STAGE DO NOT CLOSE THE CROSS AND IF ALREADY CLOSED RECALL THE COMPLAINANT ON THE PLEA OF LEFT OVER CROSS AND WE WILL GIVE YOU ROAD MAP FOR DEMOLISHING THE CASE ON TECHNICAL ISSUES.
