138 ni act
Mahesh Chand Gupta
(Querist) 27 October 2012
This query is : Resolved
I gave a loan of Rs. 1 Lac to the director of a private limited company on 30.03.2000. I was the statutory auditor of that company. Director gave me cheque of Rs. 1 Lac for repayment dated 20.01.2005. On presentation, cheque was dishonoured and I submitted a case under section 138 on 03.04.2005. Later on, I submitted another case u/s 420, 406, 120B I.P.C. against both the directors and new chartered accountant who was appointed illegally without complying the procedures for change of auditors. In this case, I just mentioned that I had given a sum of Rs. 1 Lac to the director who has issued cheque for repayment which was dishonoured. Now in the case of 138, director is claiming that I have filed 2 cases for one cause and wants to get relief in 138 case on this ground. Whether any relief is available to the director to whom I had lent money.
Devajyoti Barman
(Expert) 27 October 2012
It is well established that on the same cause of action two separate criminal cases can be filed. So do not worry then continue the cases.
Guest
(Expert) 28 October 2012
Director's liability of Rs.1,00,000 cannot be extinguished if his cheque has been dishonoured. Moreover, case u/s 138 of NI Act and another case u/s 420, 406, 120B IPC are two different cases for different purposes. Mere casual reference of Rs. one lakh cannot be treated as the cases for the same cause, while the first case is for dishonour of cheque and the other one for breach of trust/cheating by illegally appointing another auditor by replacing you as a matter of punishment for filing a case u/s 138. Rather the instance of avoidance of repayment of loan can strengthen your case to show bad intention on the part of the director to swindle away your money worth Rs. one lakh, provided your advocate is able to represent your case effectively.
Raj Kumar Makkad
(Expert) 29 October 2012
I completely agree with the advice of Dhingra G.
