Sec 138 club with Sec 420 ?
Querist :
Anonymous
(Querist) 05 March 2011
This query is : Resolved
On 31,Jan-2010, I have paid Cash Rs 2, 24,000/- for 10% advance money to purchase a flat & I got a Sale Agreement on Rs 100/- Stamp Paper. As per the agreement we should done this deal within 60 days of agreement. But due to some reason flat owner could not arrange money to close his homeloan on that property & this deal could not materialize. He issued me a Cheque on March 23, 2010 of Rs. 2, 34,000/- (including Rs.10, 000 as penalty) for dated June, 10 2010.He returned me Rs 1,10,000 in two part but now his intension is not to return my rest money as he said clearly. He sold that flat to someone else. I deposited that Cheque on June 10th & Cheque got bounced back reason insufficient fund, again I deposited that Cheque on July 1st & again that bounced with the same reason – insufficient fund. I sent a legal notice on 5th Aug, 2010 through a lawyer which he received & ignored.I have filed a case u/s 138 on 4th Sep-2010.As of now 1 summon issed by court but accused was absent on hearing date & now Magistrate is on vacation for 2 months.My lawyer is saying we have to wait to issue 2 more summons from court because after 3 Summons first Bailable warrent will issue.
But it will take much time & I have doubt that accused can leave his rented place at any time and can be abscond.
Now I would like to lodge FIR against him u/s 420 with reference to above filed case u/s 138 & certified copy of Summon issued to him.
Please advice can I do it as per law?
adv. rajeev ( rajoo )
(Expert) 05 March 2011
For the cheque bounce you can also file a complaint before the police, I had come across with the judgement, if I got I will send it to you.
You can get issue non bailable warrant to the accused thru., incharge judge, who is having charges of the court.
Arvind Singh Chauhan
(Expert) 05 March 2011
What is your lawyer is suggesting is better, you should have knowledge of his property record also, for further required steps.
Advocate. Arunagiri
(Expert) 05 March 2011
ONce the 138 case is initiated and is pending you can not go to police u/s 420 for the same cause of action.
Basavaraj
(Expert) 05 March 2011
Hello,
Police does not entertain the cheque bounce cases. I have given related judgment for my arguments: Sections 138, 142 - Cheque - Dishonour - Police cannot entertain a complaint under Sections 3 & 5 Cr.P.C. - Holder of cheque has to file a complaint before Magistrate. (H.Mohan & another Vs State of Karnataka) 1991 CIVIL COURT CASES 779 (Karnataka) : 1991 ISJ (BANKING) 0237 : 1992 (1) ALL INDIA CRIMINAL LR (KARNATAKA) 0237 : 1992 (1) BANKING CASES 0036 : 1992 (1) BANKING CASES 0221 : 1991 (2) BCLR 0215 : 1992 (73) COMP. CASES 0560 : 1992 BJ 0520 : 1991 (2) CRIMES 0093 : 1991 CRL. L.J. 1866 : ILR 1991 (KAR) 0612
The remedy is that you have file a civil suit. I have given related judgment on this for my support.Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - A civil suit for recovery of money as well as a complaint u/s 138 of the Act is maintainable. (D.Purushotama Reddy & Anr. Vs K.Sateesh) 2008(4) Civil Court Cases 287 (S.C.) : 2008(4) Criminal Court Cases 383 (S.C.) : 2008(3) Apex Court Judgments 528 (S.C.)
Ajay Bansal
(Expert) 05 March 2011
Now you can not do any thing more except persuing that pending complaint.
Querist :
Anonymous
(Querist) 06 March 2011
Thanks all experts for your valuable responses.
When I received cheque from accused, he had given me a written (on his handwriting & signed) promisory note on Rs. 100/- Stamp Paper & he mentioned that untill he will paid me entire amount,my dealer will keep 1 duplicate key of that flat but without informing us he sold that flat & received entire amount from purchaser.Please advice beside Sec-138(Cheque Bounce) on the following points can I file case u/s 420 -
(1) He was not the legal owner of that flat at the time af agreement because there was an existing homeloan on said property.
(2) He cheated me & sold flat without informing us where we had 1 duplicate key.
Advocate Bhartesh goyal 
(Expert) 05 March 2011
